THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


-fed 


'^'4 

V>^ 

:^.-:-j:1 


PRECEDENTS    OF    INDICTMEISTS 


SPECIAL    PLEAS. 


CHARLES  R.  TRAIN  AND  F.  F.  HEARD,  ESQUIRES, 

COUNSELLORS      AT      LAW. 


BOSTON : 

LITTLE,   BROWN   AND    COMPANY. 

18  5  5. 


T 

TG825f 

I8?5 


Entered  according  to  Act  of  Congress  in  the  year  1855,  by 

CHARLES  R.  TRAIN  AXD  F.  F.  HEARD, 

In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


CAMBUIDGE  : 
ALLEN    AND    FAUNHAM,   I'ltlNTEKS. 


s 

6 


TO   TUB 


HON.  EDWARD  MELLEN,  LL.D., 


CHIEF     JUSTICE     OF     THE     COURT     OF     COMMON     PLEA3     OF    MASSACHUSETTS, 


THIS    VOLUME 


IS      KKSPECTFULLY      INSCRIBED 


THE  AUTHORS. 


671468 


FEEFACE. 


The  following  pages  are  presented  to  the  Profession  with 
a  full  knowledge  that  there  are  already  several  collections  of 
precedents  of  indictments  and  other  criminal  pleadings.  But 
with  deference,  it  is  submitted  that  none  of  them  meet  the 
wants  of  the  American  bar  at  the  present  time;  and  this 
consideration  induced  the  authors  to  prepare  this  volume  to 
supply  the  deficiency.  The  English  collections  are  highly 
and  justly  appreciated ;  but  many  of  the  precedents  they 
contain  were  never  applicable  to  this  country,  and  others  have 
been  for  a  long  time  obsolete,  thus  rendering  it  indispensable 
that  a  book  should  be  written  with  exclusive  reference  to 
American  jurisprudence. 

The  alphabetical  arrangement  has  been  preferred,  as  more 
easy  of  reference.  The  precedents  have  been  selected  and 
framed  with  great  care.  Many  of  those  on  the  common 
law,  have  stood  the  test  of  judicial  scrutiny,  and  have  never 
been  before  published  in  America.  Some  have  been  col- 
lected from  drafts  in  actual  practice,  upon  which  convic- 
tions have  been  had  and  sustained.  But  the  greater  part, 
on  the  statutes,  are  original,  and  have  been  drawn  expressly 
for  this  book.  Most  of  them  are  preceded  and  accompanied 
with  directions  and  notes.     An  attempt  has  been  made  to 


VI  PREFACE. 

cotistract  them,  so  that  they  may  be  readily  adapted  to  other 
cases.  If,  for  any  particvilar  offence,  the  pleader  is  not  able 
to  find  a  precedent,  by  referring  to  the  statute  creating  the 
offence,  and  attentively  considering  its  operative  words,  he 
can  readily  adapt  one  of  the  precedents  given,  to  the  case 
required. 

It  will  be  noticed  that  certain  allegations  and  phrases, 
which  are  still  retained  in  the  English  and  American  pre- 
cedents, are  omitted.  It  has  long  been  settled  that  they  are 
not  necessary  to  the  validity  of  an  indictment  or  other 
criminal  accusation.  They  only  serve  to  encumber  the 
records  of  the  courts,  and  should  be  omitted. 

The  Authors  acknowledge  the  assistance  they  have  derived 
from  the  works  of  the  various  writers  on  the  criminal  law ; 
they  have  availed  themselves  of  their  labors  wherever  they 
have  found  them  useful.  Free  use  has  been  made  of  Gab- 
bett's  treatise  on  the  criminal  law,  a  work  at  once  remarkable 
for  its  lucid  style  and  singular  accuracy,  and  of  Starkie's 
excellent  book  on  the  law  of  criminal  pleading,  which  is  now 
cited  in  England,  as  direct  authority.^  The  latest  English 
and  American  cases  have  been  fully  examined,  and  reference 
made  to  them. 

pRAMINGIIAM,    MaSSACIIUSKTTS,    AugUSt,    1855. 

1  Kegina  v.  Drury,  3  Cox,  C.  C.  544,  546,  (1849). 


NOTE. 


The  editions  of  the  principal  elementary  writers  and  reporters  cited, 
when  not  otherwise  expressed,  are  the  following:  — 

Archbold,  Criminal  Pleading,  London,  1853. 

"  "  "         New  York,  1846. 

Boothby,  Criminal  Law,  London,  1854. 
Carrington  and  Kirwan's  Reports,  London  edition. 
Carrington  and  Marshman's  lleports,  London  edition. 
Carrington  and  Payne's  Reports,  London  edition. 
Croke's  Reports,  temp.  Eliz.  Dublin,  1791. 
Croke's  Reports,  temp.  Car.  Dublin,  1793. 
Chitty,  Criminal  Law,  New  York,  1847. 
Deacon,  Criminal  Law,  London,  1836. 
Dennison,  Crown  Cases,  London  edition. 
East's  Pleas  of  the  Crown,  London,  1803. 
Foster,  Criminal  Law,  London,  1776. 
Gabbett,  Criminal  Law,  Dublin,  1843. 
Hale's  Pleas  of  the  Crown,  Dublin,  1778. 
Hawkins'  Pleas  of  the  Crown,  London,  1824. 
Jebb,  Crown  Cases,  Dublin  edition. 
Leach,  Crown  Cases,  London,  1815. 
Lord  Campbell's  Acts,  by  Greaves,  London,  1851. 
Massachusetts  Reports,  Rand's  edition. 
Matthews,  Criminal  Law,  London,  1838. 
Moody,  Crown  Cases,.  London  edition. 
Purcell,  Criminal  Pleading  and  Evidence,  Dublin,  1849. 
Queen's  Bench  Reports,  London  edition. 
Russell,  Criminal  Law,  Philadelphia,  1845. 
Russell  and  Ryan,  Crown  Cases,  London  edition. 
Starkie,  Criminal  Pleading,  London,  1828. 
"NVIlmot,  Law  of  Burglary,  London,  1851. 


CONTENTS. 


CHAPTER  I. 

FAOB 

Abduction  1 


CHAPTER  n. 
Abortion 9 

CHAPTER  m. 
Accessory 13 


CHAPTER  IV. 

Administering  Chloroform,  etc.,  with  intent  to  commit  a 
Felony 20 


CHAPTER  V. 
Adultery  22 

CHAPTER  VI. 
Affray        .  * 27 

CHAPTER  VH. 
Arson  and  other  Burning 29 


X  CONTENTS. 

CHAPTER  Vm. 
Assault 38 

CHAPTER  IX. 
Attempts  to  commit  Crimks 50 

CHAPTER  X. 
Barratry 55 

CHAPTER  XL 
BLASrUEMY 59 

CHAPTER  XH. 
Bribery 62 

CHAPTER  Xm. 
Burglary 64 

CHAPTER  XIV. 

Cheats  at  Common  Law,  and  Statutory  Cheats  by  False 
Pretences  85 

CHAPTER  XV. 
Compounding  Offences 136 

CHAPTER  XVL 

CONSriRACY 110 

CHAPTER  XVH. 

DiSTiKitANcr.H  or  Pi  lir.ic  Mi;r,TiX(;s,  i:tc 17G 


CONTENTS.  XI 

CHAPTER  XVIIL 
Duelling  and  Challenging  to  Fight 179 

CHAPTER  XIX. 
Elections 183 

CHAPTER  XX. 
Embezzlement 186 

CHAPTER  XXI. 
Embracery 193 

CHAPTER  XXII. 
Escape 195 

CHAPTER  XXIII. 
Extortion 203 

CHAPTER  XXIV. 
Forcible  Entry  and  Detainer 205 

CHAPTER  XXV. 
Forgery  and  Counterfeiting 212 

CHAPTER  XXVI. 
Fornication 233 

CHAPTER  XXVII. 
Fraudulent  Conveyance      234 


XU  CONTENTS. 

CHAPTER  XXVIII. 
Homicide 244 

CHAPTER  XXIX. 
Houses  of  III  Fame 328 

CHAPTER  XXX. 

IXCEST 330 

CHAPTER  XXXI. 
Laeceny 351 

CHAPTER  XXXn. 
Lewdness  and  Lascivious  Cohabitation         .        .        .        .361 

CHAPTER  XXXm. 
Libel 354 

CHAPTER  XXXIV. 
Maintenance  . 371 

CHAPTER  XXXV. 
Malicious  Mischief  and  "Wilful  Trespass      .        .        .        .373 

CHAPTER  XXXVL 
Mayhem 384 

CHAPTER  XXXVII. 
Nulsance 885 


CONTEXTS.  Xm 

CHAPTER  XXXVIII. 
Offences  against  the  Public  Health 399 

CHAPTER  XXXIX. 
Perjury 405 

CHAPTER  XL. 
Polygamy 439 

CHAPTER  XLI. 
Rape  and  Carnal  Ivnowledge  of  Female  Children    .        .    442 

CHAPTER  XLII. 

Receiving  Stolen  Goods  and  Embezzled  Property     .        .    445 

CHAPTER  XLIII. 
Rescue 452 

CHAPTER  XLIV. 
Riot  456 

CHAPTER  XLV. 
Robbery 459 

CHAPTER  XLVI. 
Sepulchres  of  the  Dead 464 

CHAPTER  XLVH. 

Slung  Shot 466 

B 


XIV  CONTENTS. 

CHAPTER  XLVm. 
Sodomy  and  Bestiality 467 

CHAPTER  XLIX. 
Threatexixg  Letter 470 

CHAPTER  L. 
Pleas 475 


Index  to  the  Precedents 489 


INDEX 


TO    CASES    CITED 


Anderson  v.  The  Commonwealth,  2, 

22. 
Andrew  v.  New  York  Bible  Society, 

59. 
Ambrose  v.  Kerrison,  387. 
Amos  V.  The  State,  92. 
Anonymous,  251. 


B. 


Barefield  v.  The  State,  62. 
Barrators'  case,  55. 
Baude's  case,  46,  208. 
Beasley  v.  The  State,  43. 
Beeley  v.  Wingfield,  137. 
Black  V.  The  State,  37, 
Bristo.wr.  Wright,  222. 
Britt  V.  The  State,  95. 
Brooke's  case,  67. 
Brown  v.  The  Commonwealth,  181. 
Bullock  V.  The  State,  188. 
Burk  V.  The  State,  443. 
Burrow  r.  The  State,  87,  88. 


Cantrill  v.  The  People,  47. 

Carpenter  i:  The  People,  2. 

Cash  V.  The  State,  27. 

Chapman  v.  The  Commonwealth,  29. 

Clark  V.  The  People,  32. 


Clary  v.  The  Commonwealth,  144. 
Clifton  V.  The  State,  338. 
Cole's  case,  68. 
ColHns  V.  Blantern,  136. 
Commonwealth  v.  Adams,  224. 

V.  Allen,  393. 

V.  Ashley,  328. 

•  V.  Ayer,  59. 

V.  Ayer,  223. 

V.  Bailey,  212. 

V.  Bangs,  9. 

V.  Barlow,  44. 

v.  Bean,  378. 

V.  Bennett,  444. 

V.  Betton,  30. 

V.  Blanding,  354. 

V.  Boon,  58. 

V.  Bradley,  440. 

V.  Brown,  191. 

V.  Brown,  73. 

V.  Buzzell,  31. 

V.  Call,  22,  23. 

V.  Call,  93,  94,  87. 

V.  Calef,  352. 

V.  Catlin,  352. 

V.  Chapman,  44,  249,  253, 

404. 

V.  Chapman,  63. 

r.  Chapman,  354. 

V.  Chevalier,  67. 

V.  Clap,  354. 

V.  Clifford,  459,  460,  461, 

462. 


XVI 


INDEX   TO    CASES    CITED. 


Commonwealth  v.  Clark,  50. 

V.  Cook,  2. 

V.  Cooley,  4C4. 

V.  Cone,  228. 

I'.  Curran,  32. 

r.  Davis,  55,  56,  57. 

V.  Davis,  93. 

V.  Dedham,  477. 

I'.  Demain,  9. 

V.  Dimond,  349. 

V.  Drew,  87. 

V.  Drum,  330. 

V.  Dudley,  15. 

V.  Eastman,  349. 

V.  Eastman,  142,  144. 

V.  Eaton,  365. 

V.  Elwell,  24. 

V.  Farls,  385. 

V.  Fischblatt,  45. 

V.  Fitch,  208. 

V.  Flynn,  50. 

V.  Flynn,  406. 

V.  Fuller,  230. 

V.  Gibson,  253. 

V.  Giles,  190,  35G. 

v.  Goodhue,  230,  443. 

V.  Gray,  38. 

v.  GrilBn,  230. 

V.  Hall,  393. 

V.  Ilarley,  92,  94. 

V.  Harley,  219. 

V.  Harney,  31,  51,  69,  188, 

325. 

V.  Harrington,  50,  328. 

V.  Haynes,  58,  351. 

i".  Hearsey,  85. 

V.  Honeyman,  253. 

r.  Hope,  72,  73,  342. 

v.  Holmes,  354,  355. 

V.  Houjfhton,  214. 

V.  Howel,  13. 

V.  Hoxe)',  178. 

V.  Hulbert,  88,  89. 

V.  Humphries,  459,  4G2. 

V.  Hunt,  ;J9. 

V.  Hunt,  142,  114. 

V.  Hunt,  352,  440. 

I'.  Isaaks,  22. 

V.  James,  332. 

V.  Kent,  231. 

V.  Kello;.r;r,  >_>19. 

i:  Ivii'by,  49. 

V.  Mu;\])\},  ](). 

V.  Knecland,  59,  60,  354. 

V.  Kni^rht,  506. 

V.  Eallerly,  22. 

V.  Lazier,  249. 


Commonwealth  v.  Leach,  374. 

V.  Lewis,  328. 

V.  Libbey,  189. 

— V.  Loring,  465. 

V.  Macomber.  3  7. 

V.  Mark,  64.  ' 

V.  Martin,  461. 

V.  McCulloeh,  55. 

V.  IMcDonald,  50,  52. 

V.  McKisson,  144. 

V.  Merrifield,  336. 

V.  Metcalf,  47. 

—  V.  Moore,  329. 

V.  Morrill,  95. 

V.  Murphy,  58,  252. 

V.  Newell,  72,  384. 

■ f.  Parker,  9. 

i:  Parker,  435. 

V.  Pease,  136. 

V.  Pennoek,  68. 

V.  Pickering,  406. 

V.  Pollard,  40G. 

V.  Pope,  181. 

V.  Porter,  176. 

V.  Posey,  30. 

V.  lleardon,  23,  26. 

i\  llichards,  335. 

V.  Itogcrs,  309. 

V.  Runnels,  456,  457. 

■  V.  Searle,  212. 

V.  Shattuck,  205. 

r.  Shaw,  183,  184. 

V.  Shedd,  141,  144. 

V.  Silsbee,  183.' 


V.  Simpson,  186,  190. 

V.  Slack,  465. 

V.  Smith,  58. 

r.  Smith,  336. 

V.  Snelling,  355,  356. 

r.  S(inire,   36,   44,    4  7,  67, 

69. 

V.  Stearns,  189. 

V.  Stearns,  230. 

I V.  Stevens,  212. 

I'.  Steward,  6  7. 

V.  Stone,  89. 

V.  Strain,  89,  92. 

V.  Symouds,  177. 

V.  1  arbox,  354,  355. 

V.  Tavlor,  69. 

v.  Taylor,  212. 

V.  Tompson,  23. 

V.  Tubbs,  55. 

V.  Tuck,  73,  343. 

V.  Twitcliell,  365. 

().  Van  Sliaaek,  30. 

V.  Varney,  252. 


INDEX   TO   CASES   CITED. 


XVll 


Commonwealth  v.  Wade,  31,  33. 

V.  Walden,  375. 

V.  Ward,  224. 

0.  Warren,  85,  86. 

V.  Webster,  244,  311. 

V.  White,  342. 

V.  White,  405. 

V.  Wil,!ius,  87, 

V.  Williams,  GG,  69,  335. 

V.  Williams,  346. 

V.  Wilson,  212. 

V.  Wright,  212,  354. 

V.  Wyman,  187. 

V.  Yo'rk,  244. 

Conolly  V.  The  State,  47. 

Cross  V.  Peters,  85,  87. 

Crowley  v.  The  Commonwealth,  74. 

D. 

Dameron  i\  The  State,  353. 
Davis  V.  The  State,  46. 
Dean  v.  The  Commonwealth,  206. 
Devoe   v.   The    Commonwealth,    67, 

73. 
Dias  V.  The  State,  248,  253. 
Dobb's  case,  70. 

Dollarhide  v.  The  United  States,  43. 
Ducher  v.  The  State,  69. 
Diigdale  v.  Regina,  226. 


E. 


Edgecombe  v.  Rodd,  136. 
Edwards  i\  The  Commonwealth,  226. 
Ellis  V.  Blackburn,  226. 
Emory  v.  The  State,  203. 

F. 

Farnam's  case,  206. 
Fielding's  case,  65. 

G. 

Gardenhier  v.  The  State,  43. 

Goddard  v.  Smith,  56. 

Gordon  n.  Jenney,  333. 

Greeson  v.  The  State,  341. 

Gregory  v.  Regina,  356. 

Graffins  v.  The  Commonwealth,  385. 

H. 

Ilackctt  r.  The  Commonwealth,  50. 
Hairson  v.  The  State,  352. 
Halsey  v.  The  State,  203. 


Hamilton  v.  Regina,  90,  93. 
Hammond  v.  Brewer,  394. 
Hampton  v.  The  State,  448. 
Harman  v.  The  State,  442,  443. 
Ilartmann    v.    The    Commonwealth, 

144. 
Hayward's  case,  385. 
Hinson  v.  The  State,  352. 
Hodgson's  case,  25. 
Holloway  v.  Regina,  202. 
Hooper  v.  The  State,  214. 
Hope  V.  The  Commonwealth,  336,  338, 

378. 
Hopkins  v.  The  Commonwealh,  346, 

527. 
Howell  r.  The  Commonwealth,  30. 
Hull  V.  Hull,  22. 


Iveson  i'.  Moore,  56. 
Ivey  V.  The  State,  176. 


Jennings  v.  The  Commonwealth,  328. 
Jones  V.  Rice,  136,  137. 
Jones  V.  The  State,  44,  73,  74. 
Jones'  and  Bevers'  case,  74. 
Josselyn  v.  The  Commonwealth,  67, 
74,  343. 

K. 

Kcir  i\  Leeman,  136,  137. 
Kite  i\  The  Commonwealth,  74. 
Kit  V.  The  State,  459. 
Kingsbury  v.  Ellis,  137. 

L. 

Lake's  case,  203. 
Larkin's  case,  247. 
Lambert  r.  The  People,  144. 
Earned  v.  The    Commonwealth,  47, 

74,  344. 
Lavey  v.  Regina,  405. 
Leech's  case,  190. 
Lester  v.  The  State,  253. 
Lewis  r.  The  State,  64,  66. 
Lohman  i\  The  People,  10. 
Long's  case,  67. 
Loi'd  Sanchar's  case,  13. 


M. 


Mackally's  case,  14,  247. 


XYlll 


INDEX   TO    CASES   CITED. 


Malie  v.  The  Commonwealth,  253. 
Mann's  case,  56. 
ISIarch  v.  The  Teople,  144. 
McAllister  t'.  The  State,  250. 
McBride  r.  The  State,  42. 
McCoy  I'.  The  State,  44. 
McCoraas  v.  The  State,  46. 
McNair  v.  Rempublicam,  206. 
McLane  v.  The  State,  31. 
McLaughlin  v.  The   Commonwealth, 

335. 
McQuoid  V.  The  People,  47,  49. 
Mitllin  v.  The  Commonwealth,  2. 
Mills  V.  The  ComraonM-ealth,  9,  10. 
Moore  v.  The  Commonwealth,  23,  24. 
Murray  *;.  Kegina,  14,  439. 


N. 


Koden  V.  Johnson,  4. 

O. 

O'Connell   v.    The    Commonwealth, 

449. 
O'Connell  v.  Regina,  449. 

P. 

Palfrey's  case,  56,  57. 
Parcel's  case,  59. 
Peace's  case,  25. 
Peopl  e  The,  v.  Adams,  94. 

V.  Allen,  189,  190. 

V.  Babcock,  87. 

V.  P.adglcy,  214. 

V.  lUish,  50. 

V.  Chandler,  59. 

V.  Cottcrall,  31. 

c.  Krwin,  328. 

V.  (i  alio  way,  87. 

V.  Gates,  89. 

V.  (iridin,  94. 

V.  Ilaynes,  92. 

V.  llcnncsoy,  189. 

V.  Ilolhrook,  335. 

V.  Jackson,  332. 

V.  Johnson,  80. 

V.  Johnson,  87. 

r.  Lambert,  87. 

V.  Miller,  87. 

r.  Rugglcs,  59. 

V.  Stetson,  87,  93. 

V.  Stone,  85. 

V.  Williams,  87. 

i\  Whaley,  203. 


K. 

Respublica  v.  Campbell,  207. 

V.  Ilevice,  2. 

• V.  Honeyman,  253. 

V.  Powell,  86. 

V.  Roberts,  22. 

V.  Shryber.  208. 


Rex  or  Regina  v.  Abbott,  34. 

V.  Adams,  339. 

V.  Adey,  95. 

1'.  Airey,  91,  128. 

V.  Aldridge,  333. 

I'.  Alfbrd,  406. 

V.  Allen,  442. 

V.  Allen,  409. 

V.  Andrews,  72. 

V.  Ashley,  338. 

V.  Ashmall,  11. 

V.  Austin,  448. 

r.  Aylett,  405,  40G. 

V.  Bailey,  25. 

r.  Bake,  205. 

V.  Baker,  69,  70. 

i:  Ball,  133. 

r.  Ball,  31. 

V.  Bannam,  333. 

V.  Barran,  333. 

V.  Barnard,  121. 

V.  Barrators  (The). 

r.  Barton,  217. 

V.  Barran,  333. 

' V.  Bathurst,  205. 

V.  Baude,  41,  208. 

i:  Beacall,  190. 

c.  Beech,  112. 

v.  Beeton,  448. 

V.  Belstead,  340. 

r.  Bennett,  71. 

V.  Bennett,  406. 

V.  Bent,  29. 

V.  Berriman,  251. 

i\  Biers,  143. 

c.  Bird,  75,  339. 

V.  Bird,  248,  481. 

r.  liirch  &  IMartin,  215. 

c.  Biss,  252. 

V.  Bloouifield,  125. 

('•.  lioardman,  218. 

c.  Jioidt,  223. 

r.  Bond,  333,  334,  336. 

r.  Boot^man,  190. 

i\  Botfield,  394. 

/'.  15owcn,  88. 

V.  Boyall,  4. 

/■.  Bramley,  339, 

V.  Briujis,  78. 


INDEX   TO    CASES    CITED. 


XIX 


Rex  or  Regina  v.  Brooke,  G7. 

V.  Brookes,  70,  71. 

V.  Brown,  73. 

V.  Brunswick,  3-iO. 

('.  Bryan,  85. 

r.  Bullock,  71. 

1-.  Burdett,  203. 

v.  Burdett,  356. 

r.  Burch,  21G. 

v.  Bush,  UG. 

('.  Butler,  50. 

V.  Buttcrfield,  16. 

V.  Button,  38. 

V.  Camplin,  20. 

r.  Campbell,  252,  446. 

V.  Calkin,  247. 

V.  Carlile,  59,  GO. 

V.  Carlisle,  1 74. 

V.  Carson,  336,  337. 

v.  Carter,  214. 

V.  Case,  42. 

V.  Caspar,  447. 

V.  Charretie,  222. 

V.  Child,  207. 

l:  Clark,  251. 

I'.  Clark,  337. 

r.  Clarke,  76. 

V.  Coe,  10. 

V.  Cole,  68. 

V.  Compton,  68,  81. 

V.  Connor,  30,  31. 

V.  Cooper,  57,  58. 

V.  Coulson,  91,  212. 

V.  Cowell,  445. 

V.  Cox,  333. 

v.  Cox,  29. 

I'.  Craddock,  447. 

V.  Crawford,  40. 

V.  Crespin,  39,  446. 

V.  Crishara,  14,  443. 

i\  Crighton,  190. 

V.  Crosslcy,  407. 

V.  Cuddy,  176. 

V.  Dale,  127. 

V.  Dale,  248,  304. 

V.  Damford,  460. 

V.  Davey,  386. 

i\  Davis,  29. 

i-.  Davis,  385. 

V.  Deakin,  338. 

r.  Deeley,  439. 

v.  Delaval,  1. 

V.  Dent,  94. 

r.  Devonshire  (Marchion- 
ess of)  394. 

V.  Dilworth,  38. 

V.  Dixon,  86. 


Rex  or  Regina  v.  Donne  van,  31. 
V.  Donnally,  459. 

(-.  Dobb,  70. 

r.  Dorny,  207. 

r.  Douglass,  129. 

t'.  Dowlin,  405. 

V.  Downing,  14. 

V.  Drake,  213. 

V.  Dunn,  213. 

V.  Dunnett,  223. 

r.  Eastall,  340. 

V.  Edsall,  216. 

V.  Edwards,  333. 

V.  Ellins,  230. 

V.  Elsworth,  221,  223. 

V.  Elsworthy,  446. 

V.  Embden,  407. 

('.  Evans,  251. 

r.  Exminster,  75. 

V.  Farnam,  206. 

V.  Fielding,  65. 

V.  Forsgate,  340. 

v.  Forsyth,  337. 

V.  Fowle,  143. 

r.  French,  339. 

V.  Fry,  335. 

r.  Fuller,  226. 

V.  Fulton,  226. 

V.  Furneaux,  336. 

i'.  Furnival,  73. 

I'.  Gaby,  341. 

I'.  Gamlingay,  394. 

V.  Gallears,  333,  334. 

i\  Garland,  70. 

V.  Gibbs,  46. 

11.  Giddins,  461. 

(;.  Gilchrist,  212,  216. 

V.  Gilham,  203. 

V.  Gill,  142,  143. 

V.  Glandfield,  31. 

V.  Grevil,  13. 

V.  Grey  (Lord),  2. 

V.  Grounsell,  247. 

V.  Gruby,  88. 

V-  Goate,  219. 

V.  Goldstein,  216. 

r.  Gompertz,  143. 

r.  Goodhall,  87. 

V.  Haddock,  343. 

('.  Hall,  460. 

V.  Hallett,  405. 

r.  Halloway,  333. 

r.  Hamilton,  133. 

v.  Hamilton,  144. 

r.  Hanson,  38. 

r.  Hart,  213. 

u.  Hartall,  448. 


XX 


INDEX   TO    CASES    CITED. 


Rex  or  Reglna  v.  Hartshorn,  223. 

V.  Hardwicke,  55. 

r.  Hawks,  405. 

v.  Hayward,  385. 

r.  Haynes,  86. 

i:  Hayne,  340. 

V.  Heath,  226. 

r.  Henderson,  88. 

i:  Henson,  390. 

r.  Hicks,  252. 

c.  Higgins,  50. 

r.  Hiiiiiinson,  394. 

V.  HiTC  95. 

V.  Hodgson,  25. 

V.  Hodgson,  190. 

v.  Hogg,  252. 

c.  Hogan,  333. 

r.  HoUand,  250. 

r.  Hollo  way,  331. 

V.  Hohnes,  58. 

r.  Holmes,  352. 

V.  Houseman,  218. 

r.  Howell,  71. 

r.  Hughes,  340. 

V.  Hughes,  405,  411. 

V.  Hunt,  27. 

r.  Hunt,  356. 

V.  Hunter,  217. 

V.  Hutchinson,  339. 

cinder,  217. 

r.  Ion,  228. 

V.  Jackson,  122. 

('.  Jenks,  75. 

r.  Jervis,  44  7. 

V.  Johnstone,  460. 

V.  Jones  and  Bever,  74. 

r.  Jones,  215. 

r.  .Jones,  94,  124. 

r.  Ken  rick,  143. 

r.  Kelly,  247. 

V.  Kernon,  445. 

V.  Kettle,  334. 

V.  King,  143. 

r.  Kinnersley,  50. 

V.  Lad,  250.' 

('.  Lake,  203. 

I).  Lara,  85,  93. 

/;.  Larkin,  416. 

V.  Larkin,  24  7. 

v.  Lawes,  7G. 

r.  Lavey,  400. 

V.  Lloyd,  1 73. 

('.  Locost,  72. 

V.  Long,  6  7. 

t'.  Leech,  190. 

r.  fyoomis,  333. 

V.  Lord  Grey,  2. 


Rex  or  Regina  t\  Lord  Sanchar,  13. 

V.  Lovell,  219. 

('.  Mackally,  14,  247. 

V.  Madden,  447. 

V.  Mann,  56. 

V.  Mansfield,  332. 

V.  Marsden,  356. 

V.  Marsh,  50,  95. 

V.  Marshall,  343. 

V.  Martin,  93,  218,  247. 

V.  Mason,  88. 

V.  McCulley,  333. 

V.  McGregor,  190. 

V.  Mclntyre,  247. 

V.  Mears,  1,  165. 

V.  Medley,  386. 

V.  Meredith,  50. 

v.  Minton,  29,  32. 

V.  Mitchell,  130. 

V.  M'Keron,  406. 

V.  Mogg,  374. 

V.  Moiand,  92. 

v.  Moor,  4. 

V.  ]\Iosley,  248,  307. 

V.  Morris,  39,  446. 

V.  Morris,  337. 

V.  Munoz,  88. 

V.  Murtagh,  337. 

r.  Murphy,  179. 

V.  Napper,  46,  47. 

V.  Newton,  222. 

V.  Nibbs,  332. 

V.  Nicholas,  14,  254 

V.  Nichols,  14. 

V.  Nicholson,  253. 

V.  Norton,  93. 

v.  Norton,  251. 

r.  Norton,  470. 

V.  O'Brien,  247. 

— r.  Oldham,  83. 

c.  Oyerton,  406. 

c.  Owen,  40G. 

r.  Oxford,  336. 

V.  Packer,  338. 

r.  Page,  20. 

V.  Page,  72. 

?'.  Page,  231. 

V.  Palfrey,  56,  57. 

V.  Parcel,  56. 

r.  Parfitt,  75. 

V.  Pargeter,  264. 

c.  Parker,  1 22. 

r-  V.  Parker,  143,  144. 

V.  Peace,  25. 

V.  Peck,  143. 

r.  IVlfrymnn,  44,  442,  161. 

r.  I'errot,  92. 


INDEX   TO   CASES    CITED. 


XXI 


Rex  or  Eepinr\  r.  Perry,  337. 

c.  Phelps,  14' 

r.  Pliillpotts,  406. 

1:  Phillips,  10. 

i:  Phillips,  1 79. 

i:  Plestovv,  94,  124. 

r.  Powell,  76,  335. 

r.  Powell,  213,  221. 

V.  Prendergast,  406. 

r.  Puekeriug,  334. 

V.  Puddifoot,  333. 

i:  Pulham,  448. 

V.  Pye,  460. 

v.  Iladley,  335. 

V.  Read,"'l33. 

r.  Heading,  215. 

V.  Reeves,  216. 

v.  Remnant,  338. 

V.  Rew,  250. 

V.  Richards,  71. 

v.  Richards,  407. 

V.  Richardson,  143. 

V.  Rice,  179. 

V.  Ricknian,  31. 

V.  Roberts,  339. 

r.  Roderick,  50. 

(•.  Rogan,  449. 

V.  Rogers,  218. 

r.  Rogier,  397. 

r.  Rough,  334. 

r.  Rosinski,  42. 

r.  Rudge,  75. 

V.  Rudick,  79. 

I'.  Rushworthy,  88. 

r.  Ryan,  29.  ' 

I'.  Rycroft,  144. 

r.  Salmon,  30. 

v.  Sallows,  339. 

r.  Saunders,  41. 

r.  Scott,  341. 

r.  Seward,  144. 

V.  Sharwin,  247. 

r.  Shakspeare,  68. 

r.  Sheen,  484. 

r.  Sharman,  223. 

i.'.  Smith,  234. 

i:  Smith,  252. 

r.  Smith,  459. 

i:  Smith,  72. 

r.  Souters,  406. 

r.  Southerton,  136. 

r.  Spencer,  121. 

V.  Spicer,  333. 

r.  Spragg,  144. 

;•.  Stanton,  41. 

V.  Statham,  338. 

V.  Stevens,  407. 


Re.\  or  Regina  v.  Steventon,  394. 

V.  St.  John,  71. 

V.  Stone,  13  7,  138. 

V.  Stott,  449. 

V.  Stocker,  460. 

V.  Stroud,  251,  252. 

V.  St.  Weonards,  393. 

I'.  Summers,  460. 

v.  Syer,  65. 

, V.  Tavlor,  59. 

0.  Taylor,  338. 

V.  Teague,  219. 

r.  Testick,  218. 

— ; V.  Thomas,  446. 

V.  Thompson,  66. 

r.  Thompson,  76. 

r.  Thompson,  218. 

r.  Thompson,  247. 

r.  Tiddeman,  203,  470. 

r.  Tomlinson,  249. 

r.  Towle,  14. 

v.  Todd,  338. 

V.  Treeve,  85. 

V.  Tucker,  472, 

V.  Tunstall,  56. 

i:  Turner,  29. 

r.  Turner,  249. 

V.  Turner,  340,  459. 

V.  Turweston,  394. 

r.  Tye,  247, 


V.  Upton,  394. 

V.  Urlyn,  55. 

0.  Vann,  387. 


—  V.  Vaughan,  218. 

—  i\  Vincent,  359. 

—  V.  Villeneuve,  126. 

—  V.  Waddington,  59. 

—  V.  Waddington,  66,  81. 

—  V.  Wakefield,  3. 

—  r.  Walker,  97. 

—  r.  Walker,  446. 

—  r.  Walkden,  38. 

—  v.  Wallace,  17,  18. 

—  r.  Walklev,  445. 

—  r.  Wardle,  460. 

—  r.  Warman,  247. 

—  i\  Warren,  442. 

—  r.  Warshaner,  335. 

—  r.  Warnop,  207. 

—  V.  Waters,  247. 

—  r.  Waters,  Ellen,  251. 

—  i:  Waters,  Sarah,  252. 

—  V.  AVatson,  351,  352. 

—  r.  Watkins,  72. 

—  V.  Webb,  351,  352,  385. 

—  c.  Wheatley,  85,  87. 

—  V.  Whcelerj  448. 


xxn 


INDEX   TO    CASES    CITED. 


Kex  or  Eegina  v.  AAHiite,  C8. 

V.  AVhite,  385. 

V.  Whitehouse,  143. 

r.  Whiteman,  374. 

v.  AVebb,  351,  352. 

r.  AVebb,  385. 

V.  AVest,  305. 

V.  AVilcox,  217. 

i:  AA^ilkins,  340. 

r.  AA^ilford,  339. 

r.  AA' ilkinson,  339. 

!•.  AA  illianis,  42. 

V.  AA'illianis,  222. 

V.  AVilliams,  222. 

r.  AA^illiams,  226. 

V.  AA'illiams,  333. 

V.  AA^illiams,  356. 

r.  AVilliams,  251. 

v.  AVillis,  252. 

v.  Wilson,  205. 

V.  AVood,  70. 

r.  AVoodcock,  458. 

V.  AVood  ward,  68. 

r.  AVoodward,  338. 

c.  AVooIston,  59. 

V.  AVoolford,  447. 

c.  AVoolley,  131. 

V.  AVorlcy,  406. 

V.  AVroth  &  Capell,  206. 

V.  AVycherley,  9. 

V.  AVylie,  56. 

V.  AVymer,  338. 

r.  Young,  85,  87. 

r.  Young,  174. 

llew's  case,  250. 

Rice  V.  The  Commonwealth,  44. 

Riggs  V.  The  State,  251. 

Ritchie  V.  The  State,  32. 

Rogers  v.  The  Commonwealth,  52. 

Ryalls  V.  Regina,  44,  438. 


S. 


Sampson  ?•.  The  State,  27. 
Sampson  v.  Tlie  Commonwealth,  31. 
Salisbury  r.  1'he  State,  335. 
Seany  r.  The  State,  203. 
Sill  r.  Regina,  93. 
Siiiitli  r.  'J'iic  State,  328,  329. 
Spcnce  r.  'J'hompson,  203. 
State,  The  r.  Ames,  223. 

V.  Avery,  22. 

V.  Ayer,  73,  74,  75. 

V.  iJailey,  1H3. 

V.  IJaih-y,  32.H,  395. 

V.  IJancroCt,  67. 

V.  Barnes,  356. 


State,  The  v.  Bean,  213. 

V.  Benthal,  28. 

r.  Bonney,  214. 

V.  Bray,  439. 

V.  Brown,  332. 

V.  Brunson,  22. 

V.  Buchanan,  144. 

V.  Burnham,  144. 

V.  Burnham,  354. 

V.  Butler,  1 9. 

V.  Butler,  206. 

V.  Butlar,  207. 

V.  Carr,  212. 

V.  Chandler,  59. 

V.  Chitty,  57. 

V.  Clark,  332. 

V.  Coggswell,  203. 

V.  Cooper,  9. 

V.  Cooper,  22,  72. 

V.  Cotton,  71. 

V.  Coy,  43. 

V.  Crank,  248. 

r.  Dandy,  138. 

V.  Dent,  43. 

V.  Dickens,  203. 

V.  Dowell,  332. 

V.  Downer,  47,  49. 

V.  Dnnlap,  95. 

V.  Elliott,  38. 

('.  Evans,  328. 

r.  Farley,  354. 

V.  Fanner,  443. 

V.  Findlay,  1. 

V.  Furlong,  405. 

V.  Grant,  25. 

r.  Glaze,  23. 

V.  Gooch,  233. 

V.  Greetin,  212. 

V.  Grisham,  352. 

V.  G.  S.  66. 

V.  (Justin,  212. 

V.  llailstock,  44. 

r.  Hailey,  47,  49. 

r.  Harding,  205,  207. 

V.  Haskell,  194. 

r.  Hathaway,  406. 

V.  Heflin,  27. 

r.  Henderson,  354,  355,  356. 

V.  Hewett,  144. 

V.  He  vice,  2. 

r.  Hinton,  22,  23. 

r.  Hooker,  4  7. 

r.  Howell,  44. 

r.  Jim,  442. 

v.  Justice,  85. 

r.  Kcan,  438. 

r.  Jvccnc,  405. 


INDEX  TO   CASES   CITED. 


XXIU 


state,  The  v.  Kennedy,  43. 

V.  Lash,  22. 

V.  Lathrop,  93. 

V.  Ledford,  27. 

V.  Logan,  332. 

V.  Longbottoms,  335. 

V.  Lyon,  31. 

V.  Maberry,  196. 

V.  Mather,  81. 

V.  Metcalf,  449. 

V.  Millard,  352. 

V.  Mills,  87,  89,  95. 

V.  Moore,  352. 

V.  Moore,  74.  ' 

V.  JMoses,  249. 

V.  Mumford,  406. 

V.  Murphy,  2,  447. 

V.  Nelson,  448. 

V.  Nichols,  43. 

V.  Nixon,  328,  329. 

r.  O'Bannon,  1,  3,  4. 

V.  Owen,  247,  248. 

V.  Palmer,  42. 

V.  Palmer,  440. 

V.  Parker,  214. 

V.  Pearce,  22. 

V.  Pearson,  205,  207. 

V.  Philbrick,  89. 

V.  Potts,  214. 

V.  Powell,  86. 

V.  Priddy,  28. 

V.  Rickey,  144. 

V.  Ripley,  144. 

V.  Roberts,  144. 

V.  Roberts,  22. 

V.  Roe,  35. 

V.  Roper,  351. 

V.  Rout,  335. 

V.  Rowley,  87. 

V.  Sandy,  30. 

V.  Seamons,  43. 

I'.  Sims,  15. 

V.  Shryber,  208. 

V.  Simpson,  87. 

V.  Smith,  92,  93. 

V.  Smith,  247. 

V.  Somerville,  338. 

V.  Speirin,  207. 

V.  Squires,  74. 

V.  Stotts,  203. 

V.  Strat,  405,  406. 

V.  Street,  405. 

V.  Stroll,  85. 

V.  Stone,  89. 

I'.  Summer,  27. 

V.  Sutton,  443. 

r.  Taylor,  179. 


State,  The  v.  Terry,  443,  444. 

V.  Thurston,  2G, 

V.  Tidwell,  1,  3. 

V.  Tootle,  333. 

V.  Thurstin,  26. 

r>.T witty,  212. 

V.  Vawter,  10. 

r.  Vittum,  25. 

^r—  V.  Wallace,  22. 

r.  Weaver,  213,  219. 

V.  White,  354. 

V.  Whitfield,  205. 

V.  Williams,  44. 

V.  Wilson,  64. 

V.  Woodson,  96. 

Stebbing  v.  Spicer,  25. 

Stevens  v.  The  Commonwealth,  31, 35. 

Stevens  v.  The  Commonwealth,  449. 

Stone  V.  The  State,  249. 

Stone  V.  The  State,  249. 

Stout  V.  The  Commonwealth,  39,  45. 

Sullivant  v.  The  State,  45. 

Swaggerty  v.  The  State,  447. 

Sydserflf  r.  Regiua,  143. 

Syer's  case,  65. 


Tabart  v.  Tipper,  60,  354. 

Taylor  v.  The  State,  356. 

The  Barrators'  case,  55. 

Thomas  v.  The  State,  64. 

Timothy  v.  Simpson,  27. 

Torrence  r.  The  Commonwealth,  206. 

Trexler  v.  The  State,  43. 

Tally  V.  The  Commonwealth,  67. 

Tunstall's  case,  56. 

Turns  v.  The  Commonwealth,  477. 

Twitchell  r.  The  Commonwealth,  144. 

Tyler  v.  The  State,  92. 


u. 


Uhl  V.  The  Commonwealth,  50. 
United  States  v.  Burroughs,  388. 

r.  Britton,  355. 

r.  Hinnian,  213. 

c.  Lapoint,  40. 

V.  Maunier,  249. 

United  States  v.  Ross,  88. 

i:  Warner,  254. 

r.  Worrall,  62. 

Updegraph   v.   The    Commonwealth, 
59,  61. 


XXIV 


INDEX   TO    CASES   CITED. 


Yanpool  i:  The  Commonwealth,  206. 

Waddinffton's  case,  66,  81. 
Ward  ('."The  People,  340. 
Ward  l:  The  State,  248. 
Wash  r.  The  State,  443. 
Williams  v.  Ogle,  68. 
Williams  v.  The  State,  44,  45. 
Woiison  V.  Sayward,  340. 
Wood's  case,  70. 


Woodward's  case,  68. 
Wright  V.  Clement,  212,  354. 
Wright  V.  Regina,  144. 
Wroth  &  Capell's  case,  206. 


Young  i:  Rex,  90. 
Yates  V.  The  State,  338. 


Zenobio  v.  Axtel,  355. 


PRECEDE!(TS    OF   I]{DICTME:^TS. 


CHAPTER     I 


ABDUCTION. 


In  following  the  principle  of  arranging  the  Precedents  in 
an  alphabetical  order,  (which  has  been  preferred,  as  more 
easy  of  reference,)  the  crime  of  Abduction  is  that  which  first 
presents  itself  for  consideration.  The  statute  of  4  &  5 
Philip  and  Mary  has  been  held  to  be  in  force  in  this  country, 
in  South  Carolina,  and  was  not  considered  as  limited  to 
heiresses,  or  persons  of  quality,  as  mentioned  in  its  preamble, 
but  was  "designed  to  promote  the  security  and  happiness  of 
young  females  of  all  descriptions,  whether  poor  or  opulent."  ^ 
"  The  date  of  the  statute  of  4  &  5  Philip  and  Mary,"  say 
the  Massachusetts  Criminal  Law  Commissioners,  "  would 
render  it  a  part  of  our  common  law,  provided  it  should  be 
deemed  applicable  to  our  laws,  institutions,  and  state  of 
society;  and  it  seems  to  be  obviously  so  applicable." ^  It 
has  been  held,  both  in  England  and  in  this  country,  that  a 
conspiracy  to  procure  the  seduction  and  abduction  of  a 
woman,  is  indictable  at  common  law.^ 

^  The  State  v.  Tidwell,  5  Strobliart,  1 ;  The  State  v.  Findlay,  2  Bay,  418 ; 
The  State  v.  O'Bannon,  1  Bailey,  144.  See  also  the  Report  of  the  Massa- 
chusetts Criminal  Law  Commissioners,  Abduction,  §  4,  note  (rt). 

■  Supplementary  Report,  p.  12. 

*  Regina  v.  Mears,  1  Temple  &  Mew,  C.  C.  414 ;  2  Denison,  C.  C.  79 ;  4 
Cox,  C.  C.  423 ;  1  Eng.  Law  and  Eq.  R.  581 ;  Rex  v.  Delaval,  3  Burrow,  1434  ; 

1 


ABDUCTION.  [CIIAP.  I. 


1.  Abduction  of  an  unmarried  ivojnan  for  the  purpose  of  pros- 

titution. —  Mass.  St  1845,  ch.  216.1 

The  jurors  for  the  Commonwealth  of  Massachusetts,  upon 
their  oath  present,  that  C.  D.  late  of  B.  in  the  county  of  S., 

laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  aforesaid,  in  the  county  of  S.,  feloniously,  fraudulently, 
and  deceitfully,  did  entice  and  take  away  one  E.  F.  from  the 
house  of  one  J.  N.,  to  a  house  of  ill  fame  there  situate,  for 
the  purpose  of  common  and  public  prostitution  at  the  house 
of  ill  fame  aforesaid,  the  said  E.  F.  being  then  and  there  an 
unmarried  woman,  of  a  chaste  life  and  conversation ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

2.  Abduction  of  an  U7imarried  icoman  under  the  age  of  sixteen 

years,  for   the  purpose  of  effecting  a   clandestine   mar- 
riage.— INIass.  St.  1852,  ch.  254. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  gentleman,  on  the  first  day  of  June 

in  the  year  of   our  Lord  ,  at  B.  in  the  county  of   S., 

fraudulently  and  deceitfully  did  entice  and  take  away  one 
E.  F.  from  the  house  of  one  J.  N.,  the  father  of  the  said 
E.  F.,  without  the  consent  of  the  said  J.  N.,  for  the  purpose 
then  and  there  of  effecting  a  clandestine  marriage  of  the  said 

Rex  V.  Lord  Grey,  1  East,  P.  C.  460;  3  State  Trials,  519;  Anderson  v.  The 
Comnionwualtli,  5  Ilandolpli,  G27 ;  Tlic  State  v.  Murpby,  6  Alabama,  7G5. 
And  so  has  a  confederacy  to  assist  a  female  infant  to  escape  from  lier  fatlier's 
control,  with  a  view  to  marry  her  against  lier  will.  INIilllin  v.  The  Com- 
monwcallli,  5  "Watts  &  Ser<reant,  4G1.  And  see  Respublioa  v.  Ilcvicc,  2 
Yeatcs,  ill. 

'  This  statute  does  not  <ipply  to  the  case  of  a  man's  enticing  an  unmarried 
■woman  of  a  chaste  life  and  conversation,  away,  for  the  sole  purpose  of  illicit 
sexual  intercourse  with  him  alone.  Such  an  act  not  being  within  the  mean- 
ing of  the.  term  "  i)rostitution,"  as  used  in  the  statute.  Commonwealth  v. 
Cook,  \2  Mctculf,  O.t.  In  New  York,  the  statute  of  1848  has  received  a 
like  construction.     Carpenter  v.  The  People,  8  Barbour,  003. 


CHAP.  I.]  ABDUCTION.  3 

E.  F.  with  one  J.  S.,  without  the  consent  of  the  said  J.  N., 
the  said  E.  F.  being  then  and  there  an  unmarried  female 
under  the  age  of  sixteen  years,  to  wit,  of  the  age  of  fifteen 
years,  and  then  and  there  living  under  the  care  and  custody 
of  the  said  J.  N. ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

8.  Indictment  for  a  conspiracy  to  procure  the  abclnction  of  a 
female.^  First  Count,  on  St.  ^  Sf  5  P.  and  M.,  ch.  8. — 
Did,  for  lucre,  unlawfully  conspire,  by  false  representa- 
tions, to  take  E.  T.,  a  girl  under  sixteen,  from  the  care 
of  M.  D.,  and  to  contract  matrimony  ivilh  E.  G.  W.,  to  the 
idler  heaviness  of  her  father. 

The  jurors,  etc.,  upon  their  oath  present,  that  before  and 
at  the  time  of  committing  the  offences  in  this  and  in  the 
second  count  of  this  indictment  mentioned,  Margaret  Davilby, 
Phosbe  D.,  Elizabeth  D.,  and  Catharine  D.,  by  lawful  means, 
that  is  to  say,  by  the  consent,  direction,  and  appointment  of 
William  Turner,  esquire,  the  father  of  Ellen  Turner,  a  maid 
and  unmarried,  had  the  order,  keeping,  education,  and  gov- 
ernance of  the  said  Ellen  Turner.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that,  on  the 
seventh  day  of  March  in  the  year  of  our  Lord ,  at  Man- 
chester, in  the  county  of  Lancaster,  Edward  Gibbon  Wake- 
field, late  of  Manchester  aforesaid,  in  the  county  aforesaid, 
gentleman,  then  and  there  being  a  person  above  the  age  of 
fom-teen  years  j^  William  Wakefield,  late  of  the  same  place. 


^  This  indictment  is  taken  from  Rex  v.  Wakefield,  2  Lewin,  C.  C.  1.  For 
another  precedent  under  the  statute  4  &  5  Philip  and  Mary,  ch.  8,  see 
The  State  v.  Tidwell,  5  Strobhart,  1. 

*  This  is  a  necessary  allegation.  The  State  v.  O'Bannon,  1  Bailey,  144. 
An  information,  under  the  St.  4  and  5  Philip  &  Mary,  ch.  8,  which  enacts, 
that  "  If  anj-  person  or  persons,  above  the  age  of  fourteen  years,  shall  unlaw- 
fully take  or  convey  any  maid  or  woman  child,  unmarried,"  etc.,  charged, 
that  the  defendant,  hdng  above  the  age  of  fourteen  years,  did  take  a  young 
maid  away,  etc.     It  was  moved  in  arrest  of  judgment,  that  the  information 


4  ABDUCTIOX.  [CIIAP.  I. 

gentleman,  then  and  there  being  a  person  above  the  age  of 
fourteen  years ;  Edward  Thevenot,  late  of  the  same  place, 
laborer,  then  and  there  being  a  person  above  the  age  of  four- 
teen years  ;  and  Frances,  the  wife  of  Edward  Wakefield,  late 
of  the  same  place,  gentleman,  then  and  there  being  a  person 
above  the  age  of  fourteen  years,  not  having  any  right  or 
authority  whatever  to  take  and  convey  the  said  Ellen  Turner 
out  of  or  from  the  possession  and  against  the  will  of  the  said 
M.  D.,  etc. ;  unlawfully,  wickedly,  and  injuriously,  and  for 
the  sake  of  lucre  and  gain,  did  conspire,  combine,  confederate, 
and  agree  together,  and  with  divers  other  persons,  whose 
names  to  the  jurors  aforesaid  are  unknown,  by  divers  subtle 
stratagems  and  contrivances,  and  by  false  representations, 
unlawfully  to  take  and  convey,  and  to  cause  and  procure  to 
be  taken  and  conveyed,  the  said  Ellen  Turner,  then  and  there 
being  a  maid,  unmarried,  and  within  the  age  of  sixteen 
years,^  to  wit,  of  the  age  of  fifteen  years,  from  and  out  of  the 
possession  of  and  against  the  will  of  the  said  M.  D.,  etc.,  then 
and  there  having,  by  such  lawful  means  as  aforesaid,  the 
order,  keeping,  education,  and  governance  of  the  said  Ellen 

did  not  aver  that  the  defendant  was  above  the  age  of  foui-teen  years  at  the 
time  of  the  taking,  but  only  tliat  he  heiiuj  above  the  age  of  fourteen  years, 
did  take.  But  the  court  held,  that  the  information  was  good,  and  distin- 
guished between  the  case  where  the  existens  is  added  to  the  person  acting, 
and  where  it  is  applied  to  the  subject  of  the  act;  that  if  an  indictment  for  a 
forcible  entry  should  aver,  that  the  defendant,  on  such  a  day,  with  force  and 
arms,  did  enter  into  such  a  house,  being  the  freehold  of  J.  N.,  without  say- 
ing then  being  the  freehold,  the  indictment  would  be  bad ;  but  that  in  the 
principal  case  the  existens  being  added  to  the  person,  carried. the  sense  to  the 
time  of  the  offence  committed.  Rex  i;.  Moor,  2  Modern  Rep.  128;  2  Levinz, 
179.  And  see  Rex  v.  Boyall,  2  Burrow,  832,  833;  Noden  v.  Johnson, 
2  Eng.  Law  and  Ya{.  Rep.  201,  204.  "  And  it  seems  to  be  a  general  rule," 
says  ytarkie,  in  his  very  excellent  Treatise  on  the  Law  of  Criuiinal  Plead- 
ing, (vol.  1,  2d  ed.  p.  103,)  "  that  where  the  criminality  of  the  act  or  omission 
ari.scs  froui  the  ])articular  situation  of  the  party,  which  operates  as  a  disquali- 
fication, it  is  unnecessary  to  aver  that  disfpialification,  with  circumstances  of 
time  and  place." 

'  Tlic  imlictnicnt  must  aver,  that  tlu^  ])ci-.son  taken  away  was  a  maid  or 
wonian  c/tild,  under  the  age  of  sixteen  years.  It  is  not  sullicicnt  to  describe 
her  merely  by  her  name.     The  State  v.  O'Bannon,  1  Bailey,  144. 


CHAP.  I.]  ABDUCTION.  5 

Turner,  so  then  and  there  being  a  maid,  unmarried,  and 
within  the  age  of  sixteen  years  as  aforesaid,  to  contract  matri- 
mony with  the  said  Edward  Gibbon  Wakefield,  unknowing 
of  and  to  the  said  William  Turner,  then  and  there  being  the 
father  of  the  said  Ellen  Turner,  to  the  utter  heaviness  and 
discomfiture  of  the  said  William  Turner,  and  against  the 
peace,  etc. 


Second  Count ,  on  A  ^  5  Philip  and  Mary,  ch.  8.  —  Did,  for 
lucre,  unlawfully  conspire  to  take  E.  T.  from  the  care  of 
M.  D.,  to  the  great  disparagement  of  the  said  E.  T. 

And  the  jurors  aforesaid,  etc.,  do  further  present,  that  the 
said  E.  G.  W.,  the  said  W.  W.,  the  said  E.  T.,  and  F.  W., 
being  such  persons  as  aforesaid,  and  not  having  any  right  or 
authority  whatever  to  take  and  convey  E.  T.  out  of  or  from 
the  possession  and  against  the  will  of  the  said  W.  T.,  etc., 
afterwards,  to  wit,  on  the  same  day  and  in  the  year  aforesaid, 
at  Manchester  aforesaid,  in  the  county  aforesaid,  unlawfully, 
wickedly,  and  injuriously,  and  for  the  sake  of  lucre  and  gain, 
did  conspire,  etc.,  and  with  divers  other  persons,  whose 
names  to  the  jurors  aforesaid  are  unknown,  by  divers  subtle 
stratagems,  etc.,  and  by  false  representations,  unlawfully  to 
take  and  convey,  and  to  cause  and  procure  to  be  taken  and 
conveyed,  the  said  E.  T.,  then  and  there  being  a  maid, 
unmarried,  and  within  the  age  of  sixteen  years  as  aforesaid, 
from  and  out  of  the  possession  and  against  the  will  of  the 
said  M.  D.,  etc.,  they,  the  said  ]\I.  D.,  etc.,  then  and  there 
having,  by  such  lawful  means  aforesaid,  the  order,  keeping, 
education,  and  governance  of  the  said  E.  T.,  to  the  great 
disparagement  of  the  said  E.  T.,  to  the  utter  heaviness  and 
discomfiture  of  the  said  W.  T.,  and  against  the  peace,  etc. 

1* 


ABDUCTION.  [chap.  I. 


Third  County  on  St.  3  Hen.  7,  ch.  2.  —  Did,  for  lucre,  conspire 
to  feloniously  take  and  convey  away  E.  T.,  an  heiress,  and 
to  marry  her;  to  the  disparagement  of  herself  and  discom- 
fort of  her  friends. 

And  the  jurors,  etc.,  do  further  present,  that  before  and  at 
the  time  of  committing  the  offence  hereinafter  mentioned,  the 
said  E.  T.  was  within  the  age  of  sixteen  years,  and  a  maid, 
and  was  the  only  child  and  heir  apparent  unto  W.  T., 
esquire  ;  the  said  W.  T.,  then  having  substance  in  lands 
and  tenements  to  the  value  of  five  thousand  pounds  by  the 
year,  to  wit,  at  Manchester  aforesaid,  in  the  county  aforesaid. 
And  the  jurors,  etc.,  do  further  present,  that  the  said  E.  G.  W., 
the  said  W.  W.,  the  said  E.  T.,  and  the  said  Frances  W., 
well  knowing  the  premises,  on  the  day  and  in  the  year  afore- 
said, at  Manchester  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully, etc.,  and  for  lucre,  and  for  the  sake  of  the  said  substance 
of  the  said  W.  T.,  did  conspire,  etc.,  unlawfully,  feloniously, 
violently,  and  against  the  will  of  the  said  E.  T.,  to  take, 
force,  and  convey  away  the  said  E.  T. ;  and  by  the  aid,  pro- 
curement, and  abetment  of  the  said  William  Wakefield, 
Edward  Thevenot,  and  Frances  Wakefield,  feloniously,  and 
for  lucre,  and  for  the  sake  of  the  said  substance,  and  against 
the  will  of  the  said  E.  T.,  to  marry  the  said  E.  T.  to  the  said 
Edward  Gibbon  Wakefield,  to  the  great  disparagement  of 
the  said  E.  T.,  to  the  utter  heaviness  and  discomfort  of  her 
friends,  and  against  the  peace,  etc. 

Fourth   Count,  on    St.   3    Hen.   7,   cli.   2.  —  Did,  for   lucre, 

unlavfully  conspire  to  marry  E.  T.,  the  only  child  of  W. 

T.,  a  man  of  large  estate,  to  E.    W.   G.,  with  intent  to 

procure  for  the  said  E.  G.  W.  the  said  estate,  to  the  great 

damage  of  W.  T. 

And  the  jurors  aforesaid,  elc,  do  further  preseiit,  that  on 
the  same  day  and  in  tiie  year  aforesaid,  the  said  W.  T.  was 
seized  of  and  lawfully  entitled  to  divers  lands  and  tenements, 


CHAP.  I.]  ABDUCTION.  7 

situate  in  the  county  palatine  of  Chester,  and  lawfully  pos- 
sessed of  and  entitled  to  divers  moneys,  goods,  and  chattels, 
to  wit,  at  Manchester,  in  the  said  county  of  Lancaster ;  and 
that  the  said  E.  T.,  on  the  same  day,  etc.,  was,  and  still  is, 
the  only  daughter  and  child  of  the  said  W.  T.,  and  then  was 
an  infant  and  under  the  age  of  sixteen,  that  is  to  say,  of  the 
age  of  fifteen  years,  to  wit,  at  Manchester,  in  the  county  of 
Lancaster.  And  the  jurors,  etc.,  do  further  present,  that  the 
said  E.  G.  W.,  the  said  W.  W.,  the  said  E.  T.,  and  the  said 
F.  W.,  together  with,  etc.,  on,  etc.,  at,  etc.,  unlawfully,  etc., 
did  conspire,  etc.,  by  divers  false,  etc.,  to  cause  and  procure 
the  said  E.  T.,  then  and  there  being  such  infant  as  aforesaid, 
to  marry  the  said  E.  G.  W.,  without  the  knowledge  or  con- 
sent of  the  said  W.  T.,  her  said  father;  the  said  W.  T. 
then,  to  wit,  at  the  time  of  the  said  last-mentioned  con- 
spiracy, and  there  being  alive,  with  intent  then  and  there 
and  thereby  to  obtain  and  procure  for  the  said  E.  G.  W., 
divers  lands,  moneys,  and  goods  of  the  said  W.  T.,  to  the 
great  damage  of  W.  T.,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  and  against  the  peace,  etc. 

Fifth  Count,  on  St.  3  Hen.  7,  ch.  2. — Did  conspire  to  procure 
E.  T.,  an  heiress,  to  marnj  E.  G.  W.,  without  the  knoivl- 
edge  of  her  father,  to  the  great  disparagement  of  E.  T. 

And  the  jurors,  etc.,  do  further  present,  that  on,  etc.,  the 
said  W.  T.  was  seized  of  and  lawfully  entitled  to  divers  lands 
and  tenements,  situate  in  the  county  palatine  of  Chester,  and 
lawfully  possessed  of  and  entitled  to  divers  moneys,  goods, 
and  chattels,  to  wit,  at  Manchester,  in  the  county  of  Lancas- 
ter ;  and  that  the  said  E.  T.,  on,  etc.,  was,  and  still  is,  the 
only  daughter  and  child  of  the  said  W.  T.,  and  then  was  an 
infant  and  under  the  age  of  sixteen  years,  that  is  to  say,  of 
the  age  of  fifteen  years,  to  wit,  at  Manchester,  in  the  said 
county  of  Lancaster.  And  the  jurors,  etc.,  do  further  present, 
that  the  said  E.  G.  W.,  the  said  W.  W.,  the  said  E.  T.,  and 
the  said  F.  W.,  together  with,  etc.,  on,  etc.,  at,  etc.,  unlaw- 
fully, etc.,  did  conspire,  etc.,  by  divers  false,  etc.,  to  cause  and 


8  ABDUCTION".  [chap.  I. 

procure  the  said  E.  T.,  then  and  there  being  such  infant  as 
aforesaid,  to  marry  the  said  E.  G.  W.,  without  the  knowledge 
or  consent  of  the  said  W.  T.,  her  said  father,  the  said 
W.  T.,  then,  to  wit,  at  the  time  of  the  said  last-mentioned 
conspiracy  and  there  being  alive,  to  the  gi'eat  disparagement 
of  the  said  E.  T.,  etc. 


4.  Procuring  the  dejilemerit  of  a  girl  under  twenty  years  of  age} 

The  jurors,  etc.,  upon  then*  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  did  unlawfully,  falsely  pretend  and  represent  to  one 
A.  B.,  a  girl  under  the  age  of  twenty-one  years,  to  wit,  of  the 
age  of  eighteen  years,  that  the  said  C.  D.,  was  acquainted  with 
the  parents  of  the  said  A.  B.,  and  that  the  said  C.  D.,  knew 
a  lady  in  want  of  a  servant,  and  that  the  said  C.  D.  was  em- 
ployed by  a  lady  to  hire  a  servant ;  by  means  of  which 
false  pretences  and  representations,  the  said  C.  D.  did  then  and 
there  unlawfully  procure  the  said  A.  B.,  then  and  there  being 
under  the  age  of  twenty-one  years  as  aforesaid,  to  have  illicit 
carnal  connection  with  a  certain  person,  to  the  jurors  afore- 
said unknown.  Whereas,  in  ti"uth  and  in  fact,  the  said  C.  D. 
was  not  then  and  there  acquainted  with  the  parents  of  the 
said  A.  B. ;  and  whereas,  in  truth  and  in  fact,  the  said  C.  D. 
did  not  then  and  there  know  a  lady  in  want  of  a  servant ; 
and  whereas,  in  truth  and  in  fact,  the  said  C.  D.  was  not  then 
and  there  employed  by  any  lady  to  hire  a  servant,  as  the 
said  C.  D.  then  and  there  well  knew ;  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute,  etc. 

'  U  Cox,  C.  C.  Appendix,  p.  Ixxviil.     See  St.  12  &  13  Vict.  ch.  7G. 


CHAPTER    II. 


ABORTION. 

It  is  not  an  offence,  at  common  law,  to  perform  an 
operation  upon  a  pregnant  woman,  with  her  consent,  for 
the  purpose  of  procuring  an  abortion,  and  thereby  to  effect 
such  purpose,  unless  the  woman  be  quick  with  child.^ 

1.  For  administering  poison  to  procure  miscarriage.  —  Mass. 
St.  1845,  ch.  27. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  gentleman,  on  the  first  day  of  June 

in  the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  feloniously,  maliciously,  and  without  lawful  justifi- 
cation, did  administer  to  one  E.  F.,  the  said  E.  F.  being  then 
and  there  pregnant  with  child,  a  large  quantity,  to  wit,  two 
ounces  of  a  certain  noxious  thing,  called  savin,^  with  intent 

^  Commonwealth  v.  Parker,  9  Metealf,  263  ;  Commonwealtb.  v.  Bangs,  9 
Mass.  387;  The  State  v.  Cooper,  2  New  Jersey,  57 ;  1  Gabbett,  Crim.  Law, 
519.  But  see  contra,  Mills  v.  The  Commonwealth,  13  Pennsylvania  State 
Kep.  631.  See  also  Commonwealth  i'.  Domain,  Brightly,  441  ;  Regina  v. 
Wycherlcy,  8  Carrington  &  Payne,  26 2,  204.  In  ]Massachusetts  and  in  New 
Jersey,  the  oifence  is  now  made  punishable  by  statute. 

*  If  there  be  any  doubt  as  to  the  drug  administered,  it  may  be  prudent, 
perhaps,  to  state  it  in  different  ways  in  several  counts,  and  add  a  count 
stating  it  to  be  "  a  certain  noxious  thing  to  the  jurors  aforesaid  unknown." 
Archbold,  Crim.  PI.  (London  ed.  1853),  518.  Although,  in  Indiana  it  has 
been  decided,  that  in  an  indictment  on  the  statute  of  that  State,  which 
enacts,  that  "  Every  person  who  shall  wilfully  administer  to  any  pregnant 
woman,  any  medicine,  drug,  substance,  or  thing  whatever,  or  employ  any 
instrument,  etc.,  with  intent  thereby  to  procure  the  miscarriage  of  any 


10  ABORTION.  [chap.  IT. 

thereby  then  and  there  to  cause  and  procure  the  miscarriage 
of  the  said  E.  F.  ^  If  the  ivoman  die  in  consequence,  pro- 
ceed as  foUoics.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  E.  F.,  afterwards, 

to  wit,  on  the  first  day  of  July  in  the  year  of  our  Lord , 

at  B.  aforesaid,  in  the  county  aforesaid,  by  means  of  the 
noxious  thing  aforesaid,  so  as  aforesaid,  in  manner  and  form 
aforesaid  administered  by  the  said  C.  D.,  and  taken  and  swal- 
lowed by  the  said  E.  F.,  then  and  there  died ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 


2.   For  using  instruments   to  procure   miscarriage.  —  Mass. 
St.  1845,  ch.  27. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  physician,  on 

the  first  day  of  June  in  the  year  of  our  Lord  ,  at  B. 

aforesaid,  in  the  county  aforesaid,  maliciously  and  without 


■woman,  etc.,"  the  name  of  the  medicine  need  not  be  stated,  nor  the  medicine 
be  described  as  noxious.  The  State  v.  Vawter,  7  Blackford,  592.  And  see 
Eex  I'.  Coe,  6  Carrington  &  Payne,  403 ;  Rex  v.  Phillips,  3  Campbell,  74. 

^  In  an  indictment  for  felony,  under  the  New  York  statute  of  1846,  rela- 
tive to  abortion,  the  intent  to  destroy  the  child  must  be  alleged.  And  it  is 
not  sufllcient  to  allege  that  the  defendant  administered  some  drug  to  a  preg- 
nant woman,  or  that  she  employed  some  instrument  for  the  purpose  of  pro- 
ducing a  miscarriage,  and  that  the  patient  was  quick  with  child,  and  that  the 
child  was  killed.  Lohman  v.  The  People,  2  Barbour,  216.  AYhei*e  one  stat- 
ute renders  it  a  misdemeanor  to  administer  drugs,  etc.,  to  a  pregnant  female, 
with  intent  to  produce  a  miscarriage ;  and  another  statute  declares  it  man- 
slaughter to  use  the  same  means  with  intent  to  destroy  the  child,  in  case  the 
death  of  such  child  should  be  thereby  produced;  an  indictment,  charging  all 
the  facts  necessary  to  constitute  manslaughter  under  the  latter  statute,  except 
the  intent  to  destroy  the  child,  and  alleging  only  an  intent  to  produce  mis- 
carriage, is  fatally  defective  as  an  indictment  for  manslaughter,  but  is  good 
as  an  indictment  for  a  misdemeanor.  Lohman  v.  The  People,  1  Comstock, 
37!).  In  an  indictment  for  an  attcmi)t  to  procure  abortion,  it  was  held  to  be 
suMicicnt  to  charge  an  intent  to  cause  and  procure  the  miscarriage  and  abor- 
tion of  tlic  nidllicr,  and  the  premature  birth  and  destruction  of  the  child,  of 
which  she  was  big  and  prcguunt.  Mills  c.  Tiie  (.'onmionwealtli,  13  Pennsyl- 
vania State  llcp.  C31. 


CHAP.  II.]  ABORTION.  .     11 

lawful  justification  did  use  a  certain  instrument,  the  name  of 
which  instrument  is  to  the  jurors  aforesaid  unknown,  which 
the  said  C.  D.  in  his  right  hand  then  and  there  had  and  held, 
by  then  and  there  forcing  and  thrusting  the  instrument  afore- 
said, into  the  body  and  womb  of  one  E.  F.,  the  said  E.  F. 
then  and  there  being  pregnant  with  child,  with  intent  thereby 
then  and  there  to  cause  and  procure  the  miscarriage  of  the 
said  E.  F. ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

8.    For    circulating   an   advertisement   relative    to  procuring' 
abortion.  —  Mass.  St.  1847,  ch.  83. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  physician,  on 

the  first  day  of  June  in  the  year  of  our  Lord  ,  at  B. 

aforesaid,  in  the  county  aforesaid,  unlawfully  and  knowingly 
did  publish,  distribute,  and  circulate  a  certain  advertisement, 
containing  words  and  language  giving  and  conveying  notice 
and  reference  to  a  certain  place  where  a  medicine  and  infor- 
mation might  be  obtained,  for  the  purpose  of  procuring  the 
miscarriage  of  any  woman  pregnant  with  child,  which  adver- 
tisement, published,  circulated,  and  distributed  as  aforesaid, 
is  of  the  tenor  following,  that  is  to  say,  [Jiere  set  out  an  exact 
copy  of  the  advertisement']  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

4.  Indictment  against  the  pj'incipal  for  using  an  instrument  to 
procure  abortion,  and  against  an  accessor?/  before  the  fact.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  Thomas 
Ashmall,  late  of  B.  in  the  county  of  S.,  gentleman,  on  the 
first  day  of  June  in  the  year  of  our  Lord ,  at  B,  afore- 
said, in  the  county  aforesaid,  feloniously,  unlawfully,  and  mali- 
ciously, did  use  a  certain  instrument,  the  name  of  which  instru- 

^  Regina  v.  Aslimall,  9  Carrington  &  Payne,  236. 


12      .  ABORTION.  [chap.  II. 

ment  is  to  the  jurors  aforesaid  unknown,  by  then  and  there 
forcing,  thrusting,  and  inserting  the  said  insti-ument  into  the 
}Drivate  parts  of  Hannah  Lear,  now  known  by  the  name  of 
Hannah  Evans,  with  intent  in  so  doing,  then  and  there  and 
thereby  to  procure  the  miscarriage  of  the  said  Hannah  Lear, 
now  known  by  the  name  of  Hannah  Evans ;  against  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  Thomas  Josiah  Tay,  late  of 
B.  aforesaid,  in  the  county  aforesaid,  gentleman,  before  the 
committing  of  the  felony  by  the  said  Thomas  Ashmall  as 
aforesaid,  to  wit,  on  the  first  day  of  June  in  the  year  of  our 
Lord  ,  at  B.  aforesaid,  in  the  county  aforesaid,  feloni- 
ously did  procure,  counsel,  and  command  the  said  Thomas 
Ashmall,  the  felony  aforesaid,  in  manner  and  form  aforesaid, 
to  commit ;  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 


CHAPTER    III. 


ACCESSORY. 

In  an  indictment  against  an  accessory  before  the  fact,  after 
describing  the  offence  of  the  principal,  it  is  sufficient  to  aver 
that  the  said  C.  D.  "did  feloniously  and  maliciously  incite, 
move,  procure,  aid,  counsel,  hire,  and  command"  the  said 
A.  B.  to  commit  the  said  felony.^  In  the  case  of  an  accessory 
after  the  fact,  it  is  sufficient  after  stating  the  principal  offence, 
to  charge  that  the  said  C.  D.,  well  knowing  the  said  A.  B. 
to  have  done  and  committed  the  said  felony,  did  afterwards 
"feloniously  receive,  comfort,  harbor,  and  maintain  the  said 
A.  B."  2  In  case  of  felonies,  created  or  punished  by  particu- 
lar statutes,  accessories  before  the  fact  are  frequently  described 
by  particular  words,  which  ought  to  be  used  in  framing 
indictments  against  them.  Yet  it  has  been  held,  that  an 
indictment  against  one,  as  an  accessory  before  the  fact  to  a 
murder,  which  alleged  that  he  did  "  maliciously  excite,  move, 
and  procure,"  was  sufficient,  where  the  words  of  the  statute 
are  "  maliciously  command,  hire,  or  counsel,"  since  the  coun- 
selling of  another  is  necessarily  included  in  the  exciting,  mov- 
ing, and  procuring.^  A  party  may  be  indicted  as  accessory 
to  one  of  several  principals,  or  to  all.  And  if  he  be  indicted 
as  accessory  to  all,  he  may  be  convicted  on  such  an  indict- 
ment as  accessory  to  one  or  some  of  them.* 

^  Lord  Sancliar's  case,  9  Co.  114;  1  Starkie,  Crim.  PI.  (London  ed.  1828), 
140. 

-  1  Deacon,  Crim.  Law,  1 7. 

'  Rex  17.  Grevil,  Anderson,  195.  And  see  Foster,  Crim.  Law,  130 ;  Com- 
monwealth V.  Howel,.  5  Grattan,  664,  672. 

*  Lord  Sancliar's  case,  9  Co.  119  ;  Archbold,  Crim.  PI.  (Am.  ed.  1846),  812. 

9 


14  ACCESSORY.  [chap.  IH. 

1.  Against  the  principal  in  the  second  degrees- 
After  stating  the  offence  of  the  principal  in  the  first  degree^ 
and  immediately  before  the  conclusion  of  th'e  indictment,  charge 
the  principal  in  the  second  degree,  as  foUoivs :  —  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
E.  F.  late  of  B.  in  the  county  aforesaid,  laborer,  on  the  first 
day  of  June  in  the  year  aforesaid,  with  force  and  arras,  at 
B.  aforesaid,  in  the  county  aforesaid,  was  feloniously  and 
[burglariously]  present,  aiding,  abetting,  and  assisting^  the 
said  C.  D.,  the  felony  and  [burglary]  ^  aforesaid,  in  manner 
and  form  aforesaid,  to  do  and  commit ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 


^ "  In  the  case  of  a  felony  at  common  law  not  punisliable  witli  death,"  says 
Archbold,  Crim.  PL  (London  ed.  1853),  765,  "and  in  cases  of  felony  at  com- 
mon law  or  by  statute,  where  the  principal  in  the  first  degree  is  expressly, 
and  the  principal  in  the  second  degree  is  by  construction  of  law,  punishable 
with  death,  the  pleader  may  charge  the  principal  in  the  second  degree  either 
as  principal  in  the  first  degree,  for  proof  that  he  was  present  aiding  and 
abetting  will,  in  such  a  case,  maintain  an  indictment  charging  him  with  hav- 
ing actually  committed  the  offence  ;  see  Mackally's  case,  5  Co.  67,  i ;  1  Hale, 
P.  C.  438;  Rex  v.  Towle,  Russell  &  Ryan,  C.  C.  314  ;  or,  as  being  present 
aiding  and  abetting,  as  in  the  form  above  given,  at  his  option.  Regina  v. 
Crisham,  Carrington  &  IMarshman,  187;  Regina  v.  Downing,  1  Denison, 
C.  C.  52;  2  Carrington  &  Kirwan,  382.  A.,  B.,  and  C.  were  indicted  for 
murder ;  in  the  first  count,  as  princi2:)als  in  the  first  degree  ;  and  in  the  sec- 
ond, A.  was  indicted  as  a  principal  in  the  first  degree,  and  3.  and  C.  as  prin 
cipals  in  the  second  degree ;  the  grand  jury  ignored  the  first  count  as  to  B. 
and  C,  and  found  a  true  bill  on  the  second  count  against  all ;  it  seems  that 
B.  and  C.  might  be  convicted  on  the  second  count,  though  A.  was  acquitted. 
Regina  v.  rhdjis,  Carrington  &  Marshman,  180." 

*  An  inciuisition  for  manslaughter,  which  charges  that  the  principals  in  the 
second  degree  were  feloniously  present  then  and  there  abetting,  aiding,  and 
assisting,  is  bad,  as  the  word  "  fiiloniously  "  only  extends  to  the  word  "pres- 
ent." Rex  V.  Nicholas,  7  Carrington  &  Payne,  538.  See  also  Regina  v. 
Phelps,  Carrington  k  Marshman,  180. 

'  The  onlj'  variation  })ctw(^en  indictments  against  accessories  to  arson, 
robbery,  rape,  etc.,  and  the  precedent  given  in  tlie  text  is,  that  instead  of 
the  word  "  burglary,"  the  word  "  arson,"  "  robbery,"  "  rape,"  etc.,  must  be 
inserted,  as  the  case  may  require,  omitting,  of  course,  to  charge  that  the 
defendant  was  "burglariously"  present,  etc. 


CHAP.  III.]  ACCESSORY.  15 

in  such  case  made  and  provided.  In  an  indictment  for  mur- 
der^ this  is  inserted  immediately  before  the  concluding^  clause, 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
etc. ;  and  the  coticluding'  clause  then  charges  both  the  principals 
in  the  first  and  second  degree  with  the  murder,  as  folloivs :  — 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say 
and  present,  that  the  said  C.  D.  and  E.  F.,  the  said  J.  N.  in 
manner  and  form  aforesaid,  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  kill  and  murder; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

2.  Against  an  accessory  before   the  fact,  together  ivith  the 

principal. 

After  charging  the  principal  with  the  offence^  and  imme- 
diately before  the  conclusion  of  the  indictment,  charge  the  acces- 
sory as  follows :  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  E.  F.  late  of  B.  aforesaid, 
in  the  county  aforesaid,  laborer,  before  the  said  felony  and 
[burglary]  was  committed  in  manner  and  form  aforesaid,  to 
wit,  on  the  first  day  of  June  in  the  year  aforesaid,  with  force 
and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  did  felo- 
niously and  maliciously  incite,  move,  procure,  aid,  counsel, 
hire,  and  command,  the  said  C.  D.  the  said  felony  and  [burg- 
lary] in  manner  and  form  aforesaid  to  do  and  commit ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

3.  Against  an  accessory  before  the  fact,  the  jjrincipal  being 

convicted? 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 

*  In  South  Carolina,  it  has  been  held,  that  at  common  law  it  is  not  neces- 
sary in  an  indictment  against  an  accessory  before  the  fact,  in  a  felony,  to  set 
out  the  conviction  or  execution  of  the  principal.  The  State  v.  Sims,  2 
Bailey,  24.     But  see  Commonwealth  v.  Dudley,  6  Leigh,  614. 

2  Archbold,  Crim.  PI.  (Am.  ed.  1846),  815. 


16  ACCESSORY.  [chap.  III. 

wit,  at  the  general  sessions  of  the  delivery  of  the  jail  of,  etc. 
etc.,  so  continuing'  the  caption  of  the  indictment  against  the 
principal,  it  was  presented  upon  the  oaths  of,  etc.,^  that  one 
J.  S.  late  of,  etc.,  continuing  the  indictment  to  the  end,  reciting" 
it  in  the  past,  and  not  in  the  present  tense;  upon  which  said 
indictment  the  said  J.  S.,  at  the  session  of  the  jail  delivery 
aforesaid,  was  duly  convicted  of  the  felony  and  [larceny] 
aforesaid ;  as  by  the  record  thereof  more  fully  and  at  large 
appears.*  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  J.  N.  late  of  B.  aforesaid,  in  the 
county  aforesaid,  laborer,  before  the  said  felony  and  [larceny] 
was  committed  in  form  aforesaid,  to  wit,  on  the  first  day  of 
May  in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 
aforesaid,  did  feloniously  and  maliciously  incite,  move,  pro- 
cure, aid,  counsel,  hire,  and  command  the  said  J.  S.  the  said 
felony  and  [larceny]  in  manner  and  form  aforesaid  to  do  and 
commit ;  against  the  peace,  etc. 


4.  Against  an  accessory  before  the  fact.  —  Rev.  Sts.  of  Mass. 

ch.  133,  §  1.2 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  E.  F.  late  of  B.  in  the  county  of  S.,  laborer, 
before  the  said  felony  and  [murder]  was  committed  in  man- 
ner and  form  aforesaid,  to  wit,  on  the  first  day  of  May  in  the 
year  of  our  Lord  ,  at  B.  in  the  county  of  S.,  was  acces- 
sory thereto  before  the  fact,  and  then  and  there  feloniously, 


*  In  setting  out  tlie  indictment  against  tlie  principal,  it  is  not  suflicient  to 
allege,  tliat  "  at  the  sessions  of  jail  delivery,  etc.,  it  was  presented,"  etc.,  with- 
out saying  by  whom,  and  on  oath,  etc.  Ilegina  v.  Butterfield,  2  Moody  & 
Rol)inson,  522  ;  1  Co.x,  C.  C.  39. 
*  *  It  was  decided  in  Conuiion wealth  v.  Knapp,  9  Pickering,  496  (1830),  that 
the  St.  1784,  ch.  G.'),  §  1,  (from  which  the  first  section  of  the  Kev.  Sts.  ch. 
l.'i.'t,  was  taken,)  providing  that  "  li' ani/  j)erson  shall  aid,  assist,  abet,  counsel, 
hire,  c(immanrl,  or  procure  any  person  to  conunit  the  crime  of  murder,  he 
shall  be  considered  as  an  accessory  before  the  fact,"  refers  to  a  person  not 
present  aiding,  etc.,  and  that  the  distinction  between  principals  in  the  second 
degree  and  accessories  was  not  abolished. 


CHAP.  III.]  ACCESSORY.  17 

(wilfully,  and  of  his  malice  aforethought,)  did  counsel,  hire, 
and  jDrocure  the  said  C.  D.  the  felony  and  [murder]  aforesaid, 
in  manner  antl  form  aforesaid,  to  do  and  commit ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


5.  Against  an  accessor//  before  the  fact,  as  for  a  substantive 
felony.  —  St.  7  Geo.  4,  ch.  64,  §  9.i         , 

The  jurors  for,  etc.,  upon  their  oath  present,  that  one  C.  D. 
late  of  B.  in  the  county  of  S.,  laborer,  (or,  that  some  person 
or  persons  to  the  jurors  aforesaid  unknown,)  on  the  first  day 
of  June  in  the  year  of  our  Lord,  etc.,  stating  the  felony  exclu- 
sive of  the  conclusion,  "  against  the  peace,"  etc..  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  E.  F.  late  of  B.  aforesaid,  in  the  county  aforesaid, 
laborer,  before  the  said  felony  and  [larceny]  was  committed 
in  form  aforesaid,  to  wit,  on  the  first  day  of  May  in  the  year 
aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did  feloni- 
ously and  maliciously  incite,  move,  procure,  aid,  counsel,  hire, 
and  command  the  said  C.  D.  [or,  the  said  person  or  persons 
to  the  jurors  aforesaid  unknown)  the  said  felony  and  [lar- 
ceny] in  manner  and  form  aforesaid,  to  do  and  commit; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

6.  For  soliciting  a  person  to  commit  an  offence.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

^  Arcbbold,  Crim.  PI.  (Am.  ed.  1846),  816.  An  indictment  is  prop- 
erly framed  as  for  a  substantive  felony  which  states  in  the  first  place,  that 
the  principal  committed  the  felony,  and  then  that  the  defendant  incited, 
moved,  etc.,  him  to  commit  it ;  although  the  principal  has  not  been  tried 
and  does  not  appear  to  be  amenable  to  justice.   Regina  v.  Wallace,  2  Moody, 

C.  C.  200 ;  Carrington  &  Marshman,  200.     Statutes  similar  to  St.  7  Geo.  4, 
ch.  64,  §  9,  have  been  passed  in  several  of  the  United  States. 

*  Archbold,  Crim.  Pi.  (Am.  ed.  1846),  820. 

2* 


18  ACCESSORY.  [chap.  III. 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county- 
aforesaid,  falsely,  wickedly,  and  unlawfully,  did  solicit  and 
incite  one  J.  W.  a  servant  of  one  J.  N.,  to  take,  embezzle, 
and  steal  a  large  quantity,  to  wit,  one  hundred  pounds  of 
cotton  twist,  of  the  value  of  five  dollars  each,  of  the  goods 
and  chattels  of  his  master,  the  said  J.  N. ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


7.  Against  an  accessory  after  the  fact,  with  the  principal. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  E.  F.  late  of  B.  in  the  county  of  S'.,  laborer, 
after  the  felony  and  [burglary]  aforesaid  was  committed  in 
manner  and  form  aforesaid,  by  the  said   C.  D.,  to  wit,  on  the 

first  day  of  July  in  the  year  of  our  Lord ,  at  B.  aforesaJd, 

in  the  county  aforesaid,  the  said  C.  D.  did  feloniously  receive, 
harbor,  and  maintain ;  the  said  E.  F.  then  and  there  well 
knowing  the  felony  and  [burglary]  aforesaid  to  have  been 
done  and  committed  by  the  said  C.  D.  in  manner  and  form 
aforesaid;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

8.   Against  an  accessory  after  the  fact,  the  principal  being 

convicted.  ^ 

Proceed  as  in  the  precedent,  No.  3,  p.  15,  to  the  asterisk, 
and  then  as  folloics  :  —  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  E.  F.  late  of  B.  afore- 
said, in  the  county  aforesaid,  laborer,  after  the  felony  and 
[burglary]  aforesaid  was  committed  in  manner  and  form 
aforesaid  by  the  said  C.  D.,  to  wit,  on  the  first  day  of  .July  in 

the  year  of  our   Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  the  said   C.  D.  did  feloniously  receive,  harbor,  and 

'  An  indictmniit  as  ibr  ;i  sul)staiitivo  fi'Ioiiy  may  ln'  in  the  same  terras. 
Rcyiaa  v.  Wallace,  2  Moody,  C.  C.  200 ;  Carrington  &  jNIarslinuui,  200. 


CHAP.  III.]  ACCESSORY.  19 

maintain ;  the  said  E.  F.  then  and  there  well  knowing  the 
felony  and  [burglary]  aforesaid  to  have  been  done  and  com- 
mitted by  the  said  C.  D.  in  manner  and  form  aforesaid; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


9.  Against  an  accessory  after  the  fact.  —  Rev.  Sts.  of  Mass. 

ch.  133,  §  4. 

Draiv  the  indictment  against  the  principal  according  to  the 
precedents,  as  the  case  inay  be,  and  then  proceed  as  foUoivs :  — 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.  late  of  B.  aforesaid,  in  the  county  afore- 
said, laborer,  afterwards,  to  wit,  on  the  first  day  of  July  in 
the  year  of  our  Lord  ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  then  and  there  well  knowing 
the  said  C.  D.  to  have  done  and  committed  the  felony  and 
[burglary]  in  manner  and  form  aforesaid,  the  said  C.  D. 
then  and  there  did  knowingly  harbor,  conceal,  maintain,  and 
assist,  with  intent  that  the  said  C.  D.  should  then  and  there 
avoid  and  escape  from  detection,  arrest,  trial,  and  punish- 
ment ;  the  said  E.  F.  then  and  there  not  standing  in  the  rela- 
tion of  husband  or  wife,  parent  or  grandparent,  child  or  grand- 
child, brother  or  sister,  by  consanguinity  or  affinity  to  the  said 
C.  D. ;  1  whereby,  and  by  force  of  the  statute  in  such  case 
made  and  provided,  the  said  E.  F.  is  deemed  an  accessory 
after  the  fact,  to  the  felony  and  [burglary]  aforesaid.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  and 
present,  that  the  said  E.  F.  at  B.  aforesaid,  in  the  county 
aforesaid,  on  the  said  first  day  of  July  in  the  year  aforesaid, 
was  an  accessory  after  the  fact,  in  manner  and  form  aforesaid, 
to  the  felony  and  [burglary]  aforesaid ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  jjrovided. 


^  It  is  necessary  to  allege  that  the  defendant  did  not  stand  in  any  of  those 
relations  to  the  principal  offender  which  are  excepted  from  the  operation  of 
the  statute  in  the  enacting  clause.     The  State  v.  Butler,  17  Vermont,  145. 


CHAPTER    IV. 


ADMINISTERING   CnLOROFORM,   ETC.,   WITH   INTENT   TO    COMMIT 
A    FELONY. 

The  following  precedent  is  drawn  on  the  St.  14  &  15 
Vict.  cli.  19,  §  3,  which  enacts,  "  That  if  any  person  shall 
unlawfully  apply  or  administer,  or  attempt  to  apply  or  admin- 
ister, to  any  person  any  chloroform,  laudanum,  or  other  stupe- 
fying or  overpowering  drug,  matter,  or  thing,  with  intent 
thereby  to  enable  such  offender  or  any  other  person  to  com- 
mit, or  with  intent  to  assist  such  offender  or  other  person  in 
committing,  any  felony,  every  such  offender  shall  be  guilty  of 
felony,    and   being   convicted    thereof   shall   be   liable,"  etc.^ 

.  ^  "  This  clause,"  says  Mr.  Greaves,  in  a  note  to  his  edition  of  Lord  Camp- 
bell's Acts,  p.  39,  "is  intended  to  prevent  the  administration  of  stupefying 
ingredients  to  persons,  in  order  to  facilitate  the  commission  of  felonies.  It 
extends  to  every  case  where  any  person  applies  or  administers,  or  attempts 
to  apply  or  administer,  any  chloroform,  laudanum,  or  other  stupefying  or 
overpowering  drug,  matter,  or  thing,  willi  intent  thereby  to  enable  such 
offender,  or  any  other  person  to  commit,  or  with  intent  to  assist  such  offender, 
or  other  person  in  committing  any  felony. 

"  In  order  to  bring  a  person  within  this  section,  two  things  must  exist. 
There  must  be  either  an  attempt  to  administer  or  apply,  or  an  actual  admin- 
jsti'ation  or  application  of  chloroform,  laudanum,  or  some  other  stupefying  or 
overpowering  ingredient,  and  an  intent  thereby  to  enable  some  person  to 
perpetrate  a  felony.  This  clause  will  include  all  persons  applying  chloro- 
form in  order  to  commit  a  robbery,  or  to  steal  any  property  from  the  person 
of  another,  and  it  would  seem  to  apjily  to  any  person  who  administers  any 
stupefying  ingredient  to  a  female,  in  order  to  have  connection  with  her  whilst 
in  a  state  of  nnconsciousiK'SS.  Sec  Ilegina  r.  Canij^lin,  1  Denison,  C.  C.  89, 
and  the  aildcnda,  explaining  the  grounds  of  that  decision."  This  case  is  also 
reported  in  1  Carrington  Ik  Kirwan,  71G  ;  1  Cox,  C.  C.  220.  Sec  also  Regina 
V.  Page,  2  Cox,  C.  C.  133. 


CHAP.  IV.]  ADMINISTERING   CHLOROFORM,   ETC.  21 

Although  this  statute  is  not  in  force  in  this  country,  still  it  has 
been  deemed  advisable  to  insert  a  precedent,  from  which  an 
indictment  under  any  similar  statute  can  be  easily  framed. 


1.    For  administering  chloroform,   vnlh  intent    to   commit  a 

felony} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county  afore- 
said, feloniously  and  unlawfully  did  apply  to  one  E.  F.  a 
large  quantity  of  a  certain  stupefying  and  overpowering  drug, 
called  chloroform,^  to  wit,  two  ounces  of  the  said  stupefying 
and  overpowering  drug  called  chloroform,  with  intent  thereby 
then  and  there  to  enable  the  said  C.  D.  then  and  there  feloni- 
ously and  violently  to  steal,  take,  and  carry  away  the  moneys, 
goods,  and  chattels  of  the  said  E.  F.,  from  the  person  and 
against  the  will  of  the  said  E.  F. ;  against  the  peace,  etc.,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

'  Lord  Campbell's  Acts,  by  Greaves,  75. 

*  If  it  be  not  certain  that  it  was  chloroform  that  was  administered,  add  a 
count  or  counts  stating  it  to  be  "  a  certain  stupefying  and  overpowering  drug 
and  matter,  to  the  jurors  aforesaid  unknown."  Archbold,  Crim.  PI.  (London 
ed.  1853),  538. 


CHAPTER    V. 


ADULTERY. 


By  the  common  law,  the  simple  act  of  adultery  is  not 
punishable  by  indictment ;  it  is  only  the  open  lewdness  or 
public  indecency  of  the  act  which  is  indictable.^  But  in 
many  of  the  United  States  it  is  now  made  punishable  by 
statute.  Whether  it  is  necessary  that  both  the  parties  be 
married  persons,  is  a  point  upon  which  the  authorities  are 
in  conflict.  The  better  opinion  seems  to  be,  that  where  one 
of  the  parties  to  the  act  of  criminal  intercourse  is  unmarried, 
the  crime  is  fornication  in  that  one,  and  adultery  in  the  mar- 
ried party  .2 


^  Anderson  v.  The  Commonwealth,  6  Randolph,  G27;  Commonwealth  r. 
Isaaks,  5  Randolph,  634 ;  The  State  v.  Brunson,  2  Bailey,  149.  In  Connec- 
ticut, it  has  been  held  a  high  misdemeanor,  punishable  by  indictment,  to 
solicit  another  to  commit  adultery.  The  State  v.  Avery,  7  Connecticut, 
267. 

«  Commonwealth  v.  Call,  21  Pickering,  .500  ;  The  State  v.  Cooper,  16  Ver- 
mont, 551  ;  The  State  v.  Pcarcc,  2  Blackford,  318;  Commonwealth  c.  Laf- 
ferty,  6  Grattan,  672;  Respublica  v.  Roberts,.2  Dallas,  124;  1  Yeates,  6 ; 
The  State  v.  Ilinton,  6  Alabama,  864  ;  Hull  v.  Hull,  2  Strobhart,  Eq.  R.  1 74. 
In  New  Jersey  it  has  been  decided,  that  even  a  married  man  does  not  com- 
mit this  crime  in  liaving  carnal  connection  Avith  an  unmarried  woman.  The 
State  V.  Lash,  1  Harrison,  380.  In  the  Stale  v.  Wallace,  9  New  Hampshire, 
515,  it  was  held,  that  this  oU'ence  was  committed  whenever  there  is  an  inter- 
course from  which  a  s[)urious  issu(>  may  jirocecd ;  and  that  then-fore  it  was 
committed  by  an  unmarried  man,  by  illicit  connection  with  a  married  woman. 
In  Massachusetts,  the  Rev.  Sts.  ch.  130,  §  1,  enact,  that  "where  the  crime  is 
conmiittcd  between  a  married  woman  and  a  man  who  is  unmarried,  the  man 
bIi.'iII  be  de(!m(;d  guilty  of  adtilli^ry,  and  be  liable  to  the  same  punishment." 


CHAP,  v.]  ADULTERY.  23 

1.  AduUerij  bij  a  married  man  ivilh  an  unmarried  woman. 
Rev.  Sts.  of  Mass.  ch.  130,  §  1. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  }  at  B.  in  the  county  of  S.,^  did 

commit  the  crime  of  adultery  with  one  J.  N.,^  by  then  and 
there  having  carnal  knowledge  of  the  body  of  the  said  J.  N., 
the  said  C.  D.  being  then  and  there  a  married  man,^  and  then 
and  there  having  a  lawful  wife  alive,  other  than  the  said 
J.  N.,  and  the  said  C.  D.  and  the  said  J.  N.  not  being  then 
and  there  lawfully  married  to  each  other  ;^  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

^  It  is  not  necessary  to  charge  the  offence  with  a  continuando.  The  State 
V.  Glaze,  9  Alabama,  283. 

*  A  special  verdict  finding  the  defendant  guilty  of  the  offence,  but  not 
finding  him  guilty  in  the  county  -where  it  is  alleged  to  have  been  committed, 
cannot  be  supported.  And  such  a  verdict  will  not  operate  as  an  acquittal, 
but  the  defendant  must  be  again  put  on  his  trial.  Commonwealth  v.  Call, 
21  Pickering,  509. 

*  As  adulteiy  may  be  committed  by  a  married  man  with  a  single  woman, 
(Commonwealth  i'.  Call,  21  Pickering,  509,)  it  is  not  necessary  to  state  the 
name  of  the  woman,  with  any  view  to  showing  that  she  was  a  married  woman. 
And  an  allegation,  that  the  offence  was  committed  "  with  a  certain  woman 
whose  name  to  said  jurors  is  unknown,"  etc.,  "  the  defendant  being  then  and 
there  a  married  man,  and  having  a  lawful  wife  alive,  other  than  said  woman 
whose  name  to  said  jurors  is  unknown  as  aforesaid,"  is  a  sufficient  descrip- 
tion of  the  person  with  whom  the  offence  is  alleged  to  have  been  committed. 
Commonwealth  v.  Tompson,  2  Cushing,  551. 

*  In  Alabama  it  has  been  held,  that  the  marriage  of  either  party  need  not 
be  alleged,  because  the  word  adultery  implies  per  se,  that  one  of  the  parties 
is  a  married  person.     The  State  v.  Hinton,  6  Alabama,  864. 

'  In  Moore  v.  The  Commonwealth,  6  Metcalf,  243,  the  indictment  alleged, 
that  the  said  Moore  "  did  commit  the  crime  of  adultery  with  one  Mary 
Stuart,  by  then  and  there  having  carnal  knowledge  of  the  body  of  the  said 
Stuart,  she  the  said  Stuart  then  and  there  being  a  married  woman,  and  hav- 
ing a  husband  alive,"  etc.  It  was  held  that  these  allegations  did  not  show 
with  certainty,  that  Mary  Stuart  was  not  the  wife  of  Moore.  In  Common- 
wealth V.  Reardon,  6  Cushing,  78,  the  indictment  alleged,  that  the  defendant 


24  .  ADULTERY.  [CHAP.  V. 

2.  Against  both  parties  jointly. —  Rev.  Sts.  of  Mass.  ch.  130,  §  1} 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  and  J.  S. 
the  wife  of  J.  N.  late  of  B.  aforesaid,  in  the  county  aforesaid, 

laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  aforesaid,  in  the  county  aforesaid,  did  commit  the  crime 
of  adultery,  by  then  and  there  having  carnal  knowledge  of 
the  bodies  of  each  other,  the  said  J.  S.  being  then  and  there  a 
married  woman,  and  then  and  there  having  a  lawful  husband 
alive,  other  than  the  said  C.  D.,  and  the  said  C.  D.  being  then 
and  there  a  married  man,  and  then  and  there  having  a  lawful 
wife  alive,  other  than  the  said  J.  S.,  and  the  said  C.  D.  and 
the  said  J.  S.  not  being  then  and  there  lawfully  married  to 
each  other;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


3.  Adultery  by  an  unmarried  man  with  a  married  woman. 
Rev.  Sts.  of  Mass.  ch.  130,  §  1.2 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord ,  at  B.  aforesaid, 


"  did  commit  tlie  crime  of  adultery  with  one  Catheriuc  Ann  Smith,  tlien  the 
lawful  wife  of  Peter  J.  Smith,  by  then  and  there  having  carnal  knowledge  of 
the  body  of  said  Catherine  Ann  Smith."  It  was  held  that  it  was  sufficiently 
alleged  that  Catherine  Ann  Smith  was  not  the  wife  of  the  defendant.  In  this 
case,  Dewey,  J.,  said :  "  The  case  of  Moore  v.  The  Commonwealth,  G  Metcalf, 
24.3,  rloes  not  condict  with  this  view  of  the  case.  In  that  case,  tliere  was  no 
allegation  that  the  female  was  the  Avife  of  another  person,  and  the  only  alle- 
galiitii,  from  wliidi  such  inference  could  be  supposed  to  be  authorized,  was 
that  setting  forth  the  name  of  the  female,  and  giving  her  a  din'crent  name 
from  that  borne  by  tlie  party  indicted  for  the  adultery." 

'  Tarties  to  the  crime  may  be  jointly  indicted.  Commonwealth  r.  El  well, 
2  Metcalf,  1!J0. 

*  Under  this  scr'tioii,  an  uiiMiarnci]  man  having  sexual  intercourse  with  a 
married  woman,  is  guilty  of  adultery,  although  he  did  not  know  that  she 
■was  married,  and  therefore  such  knowledge  need  not  be  averred,  nor  proved 
at  the  trial.     Commonwealth  v.  Elwcll,  2  Metcalf,  190. 


CHAP  v.]  ADULTERY.  25 

in  the  county  aforesaid,  did  commit  the  crime  of  adultery 
with  one  E.  F.,^  by  then  and  there  having  carnal  knowledge 


*  In  The  State  v.  Yittum,  9  New  Hampshire,  519,  the  indictment  alleged 
that  the  defendant  committed  adultery  witli  one  L.  W.,  ■without  any  further 
designation.  It  appeared  that  there  were  in  that  town,  two  individuals  of 
that  name,  father  and  son,  and  that  the  son  used  the  addition  of  "junior"  to 
his  name,  and  was  thereby  well  known  and  distinguished  from  his  father.  It 
"was  held,  that  the  defendant  had  the  right  to  understand  that  the  offence 
was  charged  to  have  been  committed  with  the  father,  and  evidence  of  adul- 
tery with  the  son  was  not  admissible  in  evidence.  In  Peace's  case,  3  Barne- 
wall  &  Alderson,  579,  upon  an  indictment  charging  an  assault  upon  Elizabeth 
Edwards,  where  it  appeared  that  she  had  a  mother  of  the  same  name,  the 
court  held  that  it  was  not  necessary  to  distinguish  her  as  "  the  younger ; " 
although,  it  was  objected,  that  where  such  an  addition  is  not  given,  the  pre- 
sumption is,  that  it  is  the  parent,  and  not  the  child,  that  is  intended.  And 
the  court  said,  that  it  was  sufficient  to  prove  that  an  assault  was  committed 
upon  a  person  bearing  the  name  of  Elizabeth  Edwards.  In  Hodgson's  case, 
1  Lewin,  C.  C.  236,  the  prisoner  was  indicted  for  stealing  a  horse,  the  prop- 
erty of  Joshua  Jennings.  It  appeai'ed  in  evidence,  that  the  horse  was  the 
property  of  Joshua  Jennings,  the  son  of  Joshua  Jennings,  the  father.  For 
the  prisoner,  it  was  objected,  that  the  person  named  in  the  indictment  must 
be  taken  to  be  Joshua  Jennings,  the  elder.  But  Parke,  J.,  on  the  authority 
of  Rex  V.  Peace,  overruled  the  objection.  In  a  recent  case  in  Maine,  (The 
State  V.  Grant,  22  Maine,  171,)  the  same  objection  was  taken  as  in  Eex  v. 
Peace,  and  overruled.  In  this  case,  Avhich  was  an  indictment  for  lai-ceny, 
the  property  charged  to  have  been  stolen  was  alleged  to  have  been  "  the 
property  of  one  Eusebius  Emerson,  of  Addison,  in  the  county  of  Washing- 
ton." The  evidence  was,  that  there  were,  in  that  town,  two  persons,  fafcer 
and  son,  and  that  the  property  belonged  to  the  son,  who  had  usually  written 
bis  name  with  the  word  "  junior"  attached  to  it.  And  it  was  held,  that  junior 
is  no  part  of  a  name,  and  that  the  ownership,  as  alleged  in  the  indictment, 
Tvas  sufficiently  proved.  In  an  indictment  for  perjury,  a  suit  in  the  Eccle- 
siastical Court  was  stated  to  have  been  dej^ending  between  A.  B.  and  C.  D. 
The  proceedings  of  the  suit,  when  produced,  were  between  A.  B.  and  C.  D. 
the  elder,  it  Avas  held,  that  there  was  no  variance.  Bex  v.  Bailey,  7  Carring- 
ton  &  Payne,  264.  In  assumpsit,  on  a  promissory  note  made  by  the  defend- 
ant, payable  to  A.  B.,  and  indorsed  by  A.  B.  to  the  plaintiff,  it  appeared 
that  there  were  two  persons  of  the  same  name,  father  and  son,  and  there  was 
no  evidence  to  show  to  which  of  them  the  note  had  been  given  ;  but  it 
appeared  that  the  indorsement  was  in  the  handwriting  of  A.  B.  the  son.  It 
was  held,  that  although  jmma  facie  the  presumption  that  A.  B.  the  father 
was  meant,  that  presumption  was  rebutted  by  the  son's  indorsement.  Steb- 
bing  V.  Spicer,  8  Common  Bench  Eep.  827. 

o 
O 


26  ADULTERY.  [CIIAP.  V. 

of  the  body  of  the  said  E.  F.,  the  said  C.  D.  being  then  and 
there  an  unmarried  man,^  and  the  said  E.  F.  being  then  and 
there  a  married  woman,  and  then  and  there  having  a  lawful 
husband  alive,  other  than  the  said  C.  D.,  and  the  said  C.  D. 
and  the  said  E.  F.  not  being  then  and  there  lawfully  married 
to  each  other;  whereby,  and  by  force  of  the  statute  in  such 
case  made  and  provided,  the  said  C.  D.  is  deemed  guilty  of 
adultery.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  present  and  say,  that  the  said  C.  D.  on  the  said  first 
day  of  June  in  the  year  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  in  manner  and  form  aforesaid,  did  commit 
the  crime  of  adultery ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


^  If  the  oiTence  is  charged  to  have  been  committed  with  a  married  woman, 
not  the  wife  of  the  defendant,  it  is  not  necessary  to  allege  that  the  defendant 
■was  either  married  or  unmarried.  Commonwealth  ;;.  Reardon,  6  Gushing, 
78.  But  the  indictment  is  insufficient,  if  it  neither  charge  that  he  was  a 
married  man,  or  that  the  female,  at  the  time  when  the  offence  is  alleged  to 
have  been  committed,  was  a  married  woman.  The  State  v.  Thurstin,  35 
Maine,  205. 


CHAPTER    VI. 

AFFRAY. 

An  indictment  for  an  affray  must  allege  the  fighting  to 
have  been  in  a  public  place.^  An  allegation  that  it  took 
place  in  the  town  of  C.  is  not  sufficient.^  Where  two  or  more 
are  indicted,  one  may  be  acquitted,  and  the  other  or  others 
convicted.3  In  Missouri,  affrays  are  not  indictable.  By  stat- 
ute, they  are  punishable  only  by  a  summary  process  before  a 
justice  of  the  peace.* 


1.  Indictment  for  cm  affray. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  and  E.  F.  late  of  B.  aforesaid, 
in  the  county  aforesaid,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  being  then  and  there  unlawfully  assem- 
bled together  and  arrayed  in  a  warlike  manner,  then  and  there 
in  a  certain  public  street  and  highway  there  situate,  unlaw- 
fully and  to  the  great  terror  and  disturbance  of  divers  citizens 
of  said  Commonwealth  then  and  there  being,  did  make  an 


^  The  State  v.  Sumner,  5  Strobhart,  53 ;  Sampson  v.  The  State,  5  Yerger, 
356.  Fighting,  if  in  a  private  place,  is  only  an  assault.  Timothy  v.  Simp- 
son, 1  Exchequer  Rep.  757  ;  Kegina  v.  Hunt,  1  Cox,  C.  C.  177. 

*  The  State  v.  Heflin,  8  Humphreys,  84. 
«  Cash  V.  The  State,  2  Overton,  198. 

*  The  State  v.  Ledlbrd,  3  Missouri,  102. 


28  AFFRAY.  [chap.  VI. 

affray  by  then  and  there  fighting  ^  with  each  other  in  the  pub- 
lic street  and  highway  aforesaid ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


^  An  indictment  wliich  alleged  that  the  defendants  "  did  make  an  affray 
bv  fighting,"  was  held  to  be  sufficient,  and  to  charge  the  fighting  sufficiently 
certain  and  definite.  The  State  v.  Benthal,  5  Humphreys,  519;  The  State 
t'.  Priddy,  4  Humphreys,  429. 


CHAPTER  VII. 


ARSON  AND    OTHER  BURNING. 


In  an  indictment  for  arson  at  common  law,  it  is  necessary 
to  lay  the  offence  to- have  been  done  wilfully  {or,  voluntarily) 
and  maliciously,  as  well  as  feloniously.^  And  though  the 
clause  of  the  9  Geo.  1,  ch.  22,  which  related  to  the  setting  fire 
to  any  house,  barn,  outhouse,  etc.,  had  not  the  words  "  wil- 
fully and  maliciously,"  or  any  words  equivalent  to  them,  or 
either  of  them,  yet  they  were  considered  to  be  necessary  to  an 
indictment  under  that  statute,  for  malice  is  of  the  essence  of 
the  offence.^  But  it  seems  that  the  allegation  that  the  act 
was  done  "  wilfully "  is  unnecessary,  as  the  term  "  mali- 
ciously "  sufficiently  imports  that  the  offence  was  committed 
wilfully.^     It  may  here  be  stated,  that  where  one  intending 

^  1  Gahbett,  Crim.  Law,  78;  2  East,  P.  C.  1033. 

=  Rex  V.  Minton,  2  East,  P.  C.  1021,  1033.  An  indictment  on  St.  7  &  8 
Geo.  4,  cli.  30,  §  2,  17,  which  charged  the  defendant  with  having  "  feloniously, 
voluntarily,  and  maliciously,"  set  fire  to  a  barn,  Avas  holden  bad,  because  the 
words  of  the  statute  are,  "  unlawfulbj  and  maliciously."  Rex  v.  Turner,  1 
Moody,  C.  C.  239 ;  4  Carrington  &  Payne,  245  ;  1  LeAvin,  C.  C.  9.  See 
also  Regina  v.  Ryan,  2  Moody,  C.  C.  15 ;  7  Carrington  &  Payne,  234. 

^  Chapman  v.  The  Commonwealth,  5  Wharton,  427 ;  Rex  v.  Cox,  1  Leach, 
C.  C.  (4th  London  ed.),  71,  (1770,)  which  was  an  indictment  for  perjury  at 
ipmmon  law.  But  an  indictment  on  that  part  of  the  Black  Act  which  made 
it  felony  ^'- iLHlfulbj  and  maliciously"  to  shoot  at  any  person  in  a  dwelling- 
Jjouse  or  other  place,  was  holden  bad,  because  it  charged  the  offence  to  have 
been  done  "  unlawfully  and  maliciously,"  omitting  the  word  "  Av^fully." 
Some  of  the  judges  thought  that  "  maliciously  "  included  "  wilfully  ;  "  but  the 
greater  number  held,  that  as  "  wilfully  "  and  "  maliciously  "  were  both  men- 
tioned in  the  statute  as  descriptive  of  the  offence,  both  must  be  stated  in  the 
indictment.  Rex  v.  Davis,  1  Leach,  C.  C.  (4th  London  ed.),  493,  (1788). 
See  Regina  v.  Bent,  1  Denison,  C.  C.  157  ;  2  Carrington  &  Kirwan,  179. 

3* 


30  ARSON  AXD  OTHER  BURNING.       [CHAP.  VII. 

only  to  burn  the  house  of  A.,  thereby  burns  the  house  of  B., 
the  indictment  may  directly  charge  him  with  the  wilful  and 
malicious  burning  of  B.'s  house.^ 

It  is  also  necessary,  at  common  law,  to  state  an  actual 
burning; 2  and  though  the  St.  9  Geo,  1,  ch.  22,  used  the 
words,  "set  fire  to,"  it  was  common,  in  prosecutions  under 
that  statute,  to  state  both,  though  in  effect  meaning  the  same 
tiling.^  But  in  a  prosecution  under  this  statute  for  setting  fire 
to  a  haystack,  it  was  moved  to  arrest  the  judgment  on  the 
ground  that  it  was  not  averred  in  the  indictment,  that  by  rea- 
son of  setting  on  fire  the  stack  of  hay  was  burnt  and  con- 
sumed. And  the  point  being  reserved,  the  judges  were  of 
opinion  that  the  conviction  was  right;  that  it  was  not  neces- 
sary the  stack  should  be  burned,  the  words  of  the  act  being 
"  set  fire  to."  ^ 

It  is  sutficient,  at  common  law,  to  charge  in  the  indictment 
the  burning  of  a  "  house,"  without  describing  it  to  be  a  dwcll- 
ing'-house  ;  ^  and  this  is  clearly  so  now,  in  indictments  under 


'  1  Gabbett,  Crim.  Law,  78 ;  2  East,  P.  C.  1034  ;  3  Greenl.  Ev.  §  56. 

'  Whether  a  building  has  been  so  affected  by  fire  as  to  constitute  a  burn- 
ing within  the  legal  meaning  of  the  term,  is  a  question  of  fact,  to  be  deter- 
mined by  the  jury  upon  the  evidence.  Commonwealth  v.  Betton,  5  Gushing, 
427.  The  least  burning  of  the  house  is  sufficient  to  constitute  the  crime. 
Commonwealth  v.  Van  Shaack,  IG  Mass.  IOj  ;  The  State  v.  Sandy,  3  Iredell, 
570;  1  Gabbett,  Crim.  Law,  75. 

»  2  Starkie,  Crim.  PI.  (London  cd.  1828),  442,  note  (w)  ;  2  East,  P.  C. 
1033;  1  Gabbett,  Crim.  Law,  79.  In  an  indictment  under  the  statute,  1 
Rev.  Code  of  Virginia,  ch.  IGO,  §  4,  it  is  not  suflicient  to  use  the  Avords  "  set 
fire  to."  But  the  word  "  burn  "  must  be  used,  that  being  the  word  employed 
in  the  statute  to  define  the  ofTence.  Howell  v.  The  Couunonwealth,  5  Grat- 
tan,  CG4. 

*  Re.x  t'.  Salmon,  Russell  &  Ryan,  C.  C.  2G.  And  see  Howell  r.  Tiic  Cou# 
men  wealth,  5  G  rattan,  CG4. 

*  Conimonwealth  v.  Posey,  4  Call,  109;  Regina  r.  Connor,  2  Co.x,  C.  C» 
65,  CG*  1  Gabbett,  Crim.  Law,  79;  2  East,  P.  C.  1033.  Tiicre  is  a  distinc- 
tion in  this  respect  between  an  Indictment  for  burglary  and  arson  at  connnon 
law;  for  donnun  riuiuf<i(»tale  is  a  necessary  descripdon  in  the  former;  but 
domurn,  (viz.  a  malt-house,  barn,  or  the  like,)  is  sufilcient  In  the  latter.  1 
Gabbett,  Crim.  Law,  79,  note  {f').     And  see  Wilmot's  Digest  of  the  Law  of 


CHAP.  VII.]  ARSON   AND    OTHER   BURNING.  31 

statutes  which  use  the  term  house,  and  not  mansion-house  or 
dwelling-house.  1  Where  outhouses  are  the  subject  of  the 
indictment,  it  appears  to  be  sufficient  to  describe  them  as  out- 
houses generally,  without  stating  of  what  particular  denomi- 
nation they  are.2 

In  designating  the  person  against  whom  the  offence  is  laid 
to  have  been  committed,  great  care  must  be  taken,  as  any 
variance  in  this  respect  will  be  fatal.^    Where  there  is  a  doubt 


Burglary,  196.  Where  an  indictment  charges  tliat  the  defendant  set  fire  to 
a  house  "  used  as  a  dwelling-house,"  being  the  property  of  A.  B.,  this  is  a  suf- 
ficient allegation  that  he  set  fire  to  a  dwelling-house.  ISIcLane  v.  The  State, 
4  Georgia,  335,  338. 

^  To  constitute  the  ofience  of  arson  at  common  law,  the  house  must  be  a 
dwelling-house  ;  and  a  common  jail  occupied  by  none  but  prisoners  is  not  a 
dwelling-house  for  this  purpose.  Regina  v.  Connor,  2  Cox,  C.  C.  65.  In  the 
case  of  Rex  v.  Donnevan,  2  W.  Blackstone,  682;  1  Leach,  C.  C.  (4th  Lon- 
don ed.),  69 ;  2  East,  P.  C.  1020,  it  was  held,  that  a  jail  was  a  house  within 
the  meaning  of  the  words  "any  house,"  in  the  St.  9  Geo.  1,  ch.  22;  but 
there  the  jaiIoi''s  house  was  part  of  the  jail,  and  the  court  gave  that  as  a  rea- 
son for  their  decision.  And  see  the  People  i'.  Cotterall,  18  Johnson,  115  ; 
Stevens  v.  The  Commonwealth,  4  Leigh,  683.  The  statute  of  Massachusetts 
refers  to  the  dwelling-house  strictly,  and  no  other  building  can  be  the  subject 
of  arson.     Commonwealth  v.  Buzzell,  16  Pickering,  153. 

*  The  burning  of  a  barn,  though  no  part  of  the  mansion-house,  if  it  had 
corn  or  hay  in  it,  was  felony  and  arson  at  common  law.  Sampson  v.  The 
Commonwealth,  5  Watts  &  Sergeant,  385  ;  1  Gabbett,  Crim.  Law,  75  ;  3 
Greenl.  Ev.  §  52. 

'  Commonwealth  v.  Wade,  17  Pickering,  395  ;  The  State  v.  Lyon,  12  Con- 
necticut, 487;  Rex  r.  Glandfield,  2  East,  P.  C.  1034;  Rex  v.  Rickman,  2 
East,  P.  C  1034;  Rex  v.  Ball,  1  Moody,  C.  C.  30;  1  Gabbett,  Crim.  Law, 
79,  80;  3  Greenl.  Ev.  §  54.  But  in  Massachusetts,  it  is  provided  by  statute, 
that  in  the  pi"osecution  of  any  offence,  committed  upon,  or  in  relation  to, 
or  in  any  way  affecting  any  real  estate,  it  shall  be  sufficient,  and  shall 
not  be  deemed  a  variance,  if  it  be  proved  on  the  trial,  that  at  the  time 
when  the  offence  was  committed,  either  the  actual  or  constructive  posses- 
sion, or  the  general  or  special  property  in  the  whole,  or  in  any  part  of 
such  real  estate,  was  in  the  person  or  community,  alleged  in  the  indictment 
or  other  accusation,  to  be  the  owner  thereof.  Rev.  Sts.  cht  133,  §  11.  Thus, 
where  an  indictment  alleged  the  ownership  of  a  building  to  be  in  one  W., 
and  the  proof  was,  that  said  W.  was  joint  lessee  with  another  person,  it  was 
held,  that  the  statute  entirely  obviated  the  objection  of  a  variance.  Common- 
•wealth  1-.  Harney,  10  Metcalf,  422. 


32  ARSON   AND    OTHER   BURNING.  [CHAP.  VII. 

ill  which  of  several  persons  the  property  vests,  it  should  be 
differently  described  in  different  counts,  in  order  to  obviate 
any  objection  on  the  score  of  variance.  The  burning  of 
property,  of  various  descriptions,  is  made  punishable  by 
statutes  in  many  of  the  United  States.  In  Illinois  and  in 
Indiana,  it  is  necessary  to  state  the  value  of  the  property. 
Because  in  those  States  the  extent  of  the  punishment  depends 
upon  the  value  of  the  property  injured  or  consumed.^ 


1.  Arson,  at  common  laiv? 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord  ,^  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  feloniously,  wilfully,  and  mali- 
ciously did  set  fire  to  and  burn  a  certain  dwelling-house  of  one 
J.  N.,  there  situate ;  against  the  peace,  etc. 

2.  For  burning  a  dwelUng'-hoiise  in  the  night  time.  —  JNIass.  St. 
1852,  ch.  259,  §  3. 

The  jtirors  for  the  Commonwealth  of  Massachusetts,  upon 
their  oath  present,  that  C.  D.  late  of  B.  in  the  county  of  S., 
laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  in  the  night  time  of  said  day,  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  the  dwelling-house  of 
one  A.  B.  there  situate,  feloniously,  wilfully,  and  maliciously, 
did  burn  and  consume ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  ])rovided. 

'  Ritdiic  V.  The  State,  7  Blackford,  1G8;  Clark  f.  The  rcoplc,  1  Scam- 
mon,  I  1  7. 

'  jMaUlicws,  Criin.  Law,  4!iC. 

*  If  tlie  olfcnccis  charged  to  have  been  doru'  in  \\\o  nhjld  tiiuc,  lliis  allega- 
tion needs  not  he  proved,  if  the  imlictnicnt  is  at  conunon  law ;  for  it  is  not 
material,  unh-ss  made  so  by  statute.  K(\\  v.  jNIinton,  2  East,  P.  C.  1021. 
And  see  Commonwealth  v.  Cnrran,  7  Ci'altan,  (JIK,  and  the  dissenting  opin- 
ion of  Fit-Id,  J. 


CHAP.  VII.]  ARSON   AND    OTHER   BURNING.  33 

3.  For  setling-  fire  to  a  building',  ivherehy  a  dwelling-house 

ivas   burnt   in   the   night   time.  —  Mass.    St.    1852,   ch. 
259,  §  3. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  in  the  night 

time  of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  a  certain  building,  to  wit,  a  barn,  of  one 
E.  F.^  there  situate,  feloniously,  wilfully,  and  maliciously  did 
set  fire  to,  and  by  the  kindling  of  said  fire,  and  by  the  burn- 
ing of  said  building,  the  dwelling-house  of  the  said  E.  F. 
there  situate,  was  then  and  there  in  the  night  time  of  said 
day,  feloniously,  wilfully,  and  maliciously  burnt  and  con- 
sumed ;  against  the  pe.ace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

4.  For  burning  a  dtvelling-hoiise  in  the  daytime. —  Rev.  Sts. 

of  Mass.  ch.  126,  §  2.2 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord ,  in  the  day- 
time of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  the  dwelling-house  of  one  E.  F.  there  situ- 
ate, feloniously,  wilfully,  and  maliciously  did  burn  and  con- 
sume ;  against  the  peace  of  said  Commonwealth,  and  con- 


^  In  the  case  of  Commonwealtli  v.  Wade,  17  Pickering,  395,  (1835,)  which 
■was  an  indictment  under  St.  1804,  ch.  131,  it  was  queried  whether  it  was 
necessary  to  allege  who  was  the  owner  or  occupant  of  such  building,  or 
whether  it  was  the  building  of  another.  But  if  the  allegation  is  made,  being 
descriptive  of  the  offence,  it  must  be  strictly  proved.  Two  indictments 
charging  the  defendant  with  setting  fire  to  a  barn,  whereby  a  dwelling-house 
was  burnt  in  the  night,  one  alleging  it  to  be  the  barn  of  A.  and  B.,  the  other 
alleging  it  to  be  the  barn  of  A.  and  C,  were  held  not  to  be  for  the  same 
offence.     Commonwealth  v.  Wade,  17  Pickering,  395. 

*  If  the  fire  was  set  to  a  building  adjoining  the  dwelling-house,  the  allega- 
tions in  indictments  upon  this  section  will  be  conformable  to  the  tacts  in  the 
case  ;  and  set  forth  as  in  the  preceding  precedent. 


34  ARSON   AND    OTHER  BURNING.  [CHAP.  VII. 

trary  to   the   form   of  the    statute  in  such  case   made  and 
provided. 


5.  For  setting  fire  to  a  building  adjoining  a  divelling-hoiise  in 

the  daytime^  ivlierehy  a  dwelling-house  was  burnt  in  the 
daytime.  —  Rev.  Sts.  of  Mass.  ch.  126,  §  2. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 
fii-st  day  of  June  in  the  year  of  our  Lord  ,  in  the  day- 
time of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  a  certain  building,  to  wit,  a  wood-house,  of 
one  A.  B.  there  situate,  and  adjoining  to  the  dwelling-house 
of  the  said  A.  B.  there  situate,  feloniously,  wilfully,  and 
maliciously  did  set  foe  to ;  and  by  the  kindling  of  said  fire 
and  the  burning  of  said  building,  the  said  dwelling-house  of 
the  said  A.  B.  was  then  and  there,  in  the  daytime,  feloniously, 
wilfully,  and  maliciously  burnt  and  consumed ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

6.  For  burning  a  stable  within  the  curtilage  of  a  dwelling' 

house.  —  Rev.  Sts.  of  Mass.  ch.  126,  §  3.i 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  yecy  of  our  Ltf)rd  ,  in  the  night 

time  of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  feloniously,  wilfully,  and  maliciously  did 
set  fire  to  a  certain  stable  of  one  A.  B.  tiiere  situate,  and  then 
ami  ilicrc  being  within  the  curtilage  of  the  dwelling-house  of 
the  said  A.  B.  there  situate,  and  by  the  kindling  of  such  fire, 
the  aforesaid  stable  there  situate  and  then  and  there  being 
within  the  curtilage  of  said  dwelling-house  as  aforesaid,  was 
tliiii  and  there,  in  the  night  time,  wilfully  and  maliciously 
bin-nt  and   consumed;  against  the   i)eace  of  said   Common- 


'  This  fonii  maybe  .idojiti'il  for  tlu;  iM.ilicioiis  hurning,  in  llie  lu^^IiL  time,  of 
any  otliur  biiililiri;^  iiKtiilioiicii  in  tlu;  lallci'  part  of  llu;  lliinl  scclion  of  the 
stiitute,  (lescribiiig  the  Imildiiiy  in  the  identical  words  of  the  statute. 


cnAP.  vil]  arson  and  other  burning.  35 

wealth,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.  , 

7.    For  burning  a  city  hall  in  the  night  time.  —  Rev.  Sts. 
of  Mass.  ch.  126,  §  3. 

That  C.  D.  late  of  W.  in  the  county  of  W.,  yeoman,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  in  the  night 

time  of  said  day,  with  force  and  arms,  at  W.  in  the  county  of 
W.,  the  city  hall  of  the  city  of  W.,  in  the  comity  of  W.  afore- 
said, there  situate  and  erected  for  public  use,  to  wit,  the 
transaction  of  the  municipal  business  of  said  city  of  W.,  then 
and  there,  %.\  the  night  time  of  said  day,  feloniously,  wilfully, 
and  maliciously  did  burn  and  consume  ;  against  the  ])eace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

8.   For  burning  a  meeting-house  in  the  daytime. —  Rev.  Sts. 
of  Mass.  ch.  126,  §  4. 

That  C.  D.  late  of  F.  in  the  county  of  M.,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord ,  in  the  day- 
time of  said  day,  with  force  and  arms,  at  F.  aforesaid,  in  the 
county  aforesaid,  a  certain  meeting-house  there  situate,  of  the 
property  of  the  First  Baptist  Society  in  Framingham,  in  said 
county ,1  and  erected  for  public  use,  to  wit,  for  the  public  wor- 
ship of  God,2  then  and  there,  in  the  daytime,  feloniously, 
wilfully,  and  maliciously  did  burn  and  consume  ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 


'  In  Vermont,  it  has  been  held,  that  in  an  indictment  for  burning  a  public 
buildinfi;,  it  is  not  necessary  to  allege  who  is  the  owner  or  occupant,  and  any 
such  allegation,  if  made,  is  immaterial.  The  State  v.  Roe,  12  Vermont,  93. 
See  also  Stevens  v.  The  Commonwealth,  4  Leigh,  683. 

*  If  any  other  building  erected  for  public  use,  as  town-houses,  court-houses, 
academies,  etc.,  the  public  use  for  which  it  is  designed  must  be  set  forth. 


36  AESON   AND    OTHER   BURNING.  [CHAP.  YIL 

9.  For  burning  a  building  erected  for  a  dwelling-honse,  and  not 
c&mpleted  or  inhabited.  —  Rev.  Sts.  of  Mass.  ch.  126,  §  o.^ 

That  J.   S.  late  of  Egremont  in  the  county  of  Berkshire, 
laborer,  on  the  fifth  clay  of  October  in  the  year  of  our  Lord 

,  in  the  night  time  of  the  same  day,  with  force  and  arms, 

at  Egremont,  in  the  county  of  Berkshire,  a  building  of  one 
Philo  Upson  of  said  Egremont,  there  situate,  erected  by  the 
said  Philo  Upson,  for  a  dwelling-house,  and  not  completed  or 
inhabited,^  wilfully  and  maliciously  did  set  fire  to,  and  the 
same  building,  so  erected  for  a  dwelling-house,  then  and 
there,  by  the  setting  and  kindling  of  such  fire,  did  wilfully 
and  maliciously  burn  and  consume  ;  against  the  pe§ce  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


10.  For  burning  a  vessel  lying  ivithin  the  body  of  the  county. 
Rev.  Sts.  of  Mass.  ch.  125,  §  5. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord  ,  in  the  night 

time  of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  a  certain  vessel  called  the  Rattler,  the  prop- 
erty of  one  A.  B.  and  of  E.  F.,  G.  H.,  etc.,  then  and  there 
lying  and  l)eing  at  B.,  within  the  body  of  the  said  county  of 
S.,  feloniously,  wilfully,  and  maliciously  did  burn  and  con- 
sume; against  the  peace  of  said  Connnonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 


'  It  Ih  not  nooossary  to  aver,  in  an  Indictment  on  this  section,  for  burning 
a  buildin;.',  tliat  tlio  building  alleged  to  liave  been  burnt,  was  "other  than  is 
mentioned  "  in  the  third  section.  And  a  conviction  or  acquittal  upon  an 
iudictment  on  this  section,  without  this  allegation,  is  a  bar  to  a  second  indict- 
ment on  Ihe  third  section  for  the  same  burning.  Commonwealth  v.  Squire,  I 
Metcalf,  'i:,x. 

'  This  allegation  siini<iiiit]y  and  properly  describes  the  offence.  Com- 
uionwcallh  r.  Scpiirc,  1  Melcaif',  258. 


CHAP.  VII.]  ARSON   AND    OTHER   BURNING.  37 

11.  For   burning  a  dwelling-house  tvith   intent   to   injure   an 
insurance  company. —  Rev.  Sts.  of  Mass.  cli.  126,  §  8. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  with  force  and 

arms,  at  B.  in  the  county  of  S.,  feloniously,  wilfully,  and 
maliciously  did  burn  and  consume,  a  certain  dwelling-house 
there  situate,  of  the  property  of  one  J.  N.,  which  dwelling- 
house  afOTesaid  was  then,  to  wit,  at  the  time  of  committing 
the  felony  aforesaid,  insured  against  loss  and  damage  by  fire 
by  the  Massachusetts  JMutual  Fire  Insurance  Company,^  the 
same  then  and  there  being  an  insurance  company  legally 
established,  with  intent  thereby  then  and  there  to  injure  said 
insurance  company;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

12.  For  setting  fire  to  stacks  of  haij. —  Rev.    Sts.  of  Mass. 

ch.  126,  §  6. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord  ,  at  B.  afore- 
said, in  the  county  aforesaid,  feloniously ,2  wilfully,  and  mali- 
ciously burn  and  consume  a  certain  stack  of  hay  of  the 
property  of  one  J.  N.,  then  and  there  being ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 


*  The  corporate  name  must  be  truly  and  correctly  stated. 

°  The  ofibnce  of  burning  stacks  of  hay,  as  j^rovided  against  by  Mass.  St. 
1804,  §  3,  4,  was  not  a  felony.  Commonwealth  v.  Maeomber,  3  Mass.  254. 
But  by  St.  1852,  ch.  37,  it  noAV  is.  In  Maryland,  the  oflence  is  not  a  felony, 
either  by  common  law  or  by  the  acts  of  1S09  and  1845.  Black  v.  The  State, 
2  Maryland,  376. 

4 


CHAPTER    VIII. 

ASSAULT. 

An  indictment  for  a  common  assault  alleges  that  the 
defendant,  at  a  certain  time  and  place,  "  with  force  and  arms, 
in  and  upon  one  C,  D.,  did  make  an  assault,  and  the  said 
C.  D.  did  then  and  there  beat,  bruise,  wound,  and  ill  treat, 
and  other  wrongs  to  the  said  C.  D.  then  and  there  did ; 
against  the  peace,"  etc.  If  there  are  circumstances  of  aggra- 
vation, not  amounting  to  a  distinct  offence,  they  may  be 
alleged  before  the  alia  enormia. 

1.  For  an  assault,  not  accompanied  tvith  a  batter//? 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  tlie  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  in  and  upon  one  A.  B.^  in  the 
peace  of  said  Commonwealth  then  and  there  being,^  did 
make  an  assault,  and  other  wrongs  to  the  said  A.  B.  then  and 


^  Tlic  causing  a  deleterious  drug  to  be  taken  by  another  was,  in  one  case, 
held  to  be  an  assault.  IJegina  v.  Button,  8  Garrington  &  Payne,  GGO,  (1838). 
But  that  decision  is  now  overruled.  See  Regina  v.  Hanson,  2  Garrington  & 
Kirwan,  912;  4  Cox,  C.  G.  138,  (1849);  Regina  v.  Dilworth,  2  Moody  & 
Robinson,  .031,  (1813);  Regina  v.  Walkden,  1  Cox,  G.  C.  913;  (1845). 

'  In  ."v  ro7iij)l(tint,  it  is  a  siifTicient  description  of  the  party  injured,  to 
allege  that  the  olFcnce  was  connnittcd  "  in  and  upon  tlio  body  of  INIary  R., 
•wife  of  the  coniplain.int."     (yoninionwealtli  r.  (iray,  2  (.'usiiing,  535. 

*  Tliis  allegation  is  unnecessary.  Comnionwealtli  v.  Murphy,  6  The 
Monthly  Law  Reporter,  n.  8.  4G0 ;  The  State  v.  Elliott,  7  Blackford,  280. 


CHAP.  VIII.]  ASSAULT.  39 

there  did  and  committed ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


2.  For  a  common  assault  and  battery. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord  ,  with  force 

and  arms,  at  B.  afoftsaid,  in  the  county  aforesaid,  in  and 
upon  one  A.  B.  did  make  an  assault,  and  the  said  A.  B.^  then 
and  there 2  did  beat,  bruise,  wound,  and  ill  treat,  and  other 
wrongs  to  the  said  A.  B.  then  and  there  did;  against  the 
peace,  etc. 

3.  For  an  assault  and  false  imprisonment? 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  in  and  upon  one  J.  N.  did  make  an 

assault,  and  the  said  J.  N.  did  then  and  there  beat,  wound, 
and  ill  treat,  and  the  said  J.  N.  then  and  there  unlawfully 
and  injuriously,  and  against  the  will  of -the  said  J.  N.,  and 
also  against  the  laws  of  this  Commonwealth,  and  without 


^  Where  the  indictment  alleged  that  the  defendant  on  Henry  B.  did  make 
an  assault,  and  the  said  William  B.  did  beat,  etc.,  it  was  held  sufficient  on 
motion  in  arrest  of  judgment,  llegina  v.  Crespin,  11  Queen's  Bench  Rep. 
913.  See  Rex  v.  Morris,  1  Leach,  C.  C.  (4th  London  ed.),  109;  Common- 
wealth V.  Hunt,  4  Pickering,  252. 

'  In  indictments  for  assaults,  there  need  not  be  either  a  repetition  of  the 
time,  or  a  reference  to  it  by  the  word  adtunc,  as  the  time  first  laid  will  be 
connected  with  all  the  subsequent  facts.  But  in  indictments  for  felony  it  is 
otherwise  ;  and  especially  where  the  crime  consists  of  a  combination  of  facts ; 
as  a  murder  which  consists  of  the  assault  and  stroke ;  and  in  robbery  from 
the  person,  and  other  cases.  Purcell,  Crim.  PI.  77;  2  Hale,  P.  C.  178;  1 
Starkie,  Crira.  PI.  (London  ed.  1828,)  58,  59.  And  see  Baude's  case,  Cro. 
Jac.  41;  Stout  v.  The  Commonwealth,  11  Sergeant  &  Rawle,  17  7,  178. 
However,  in  practice,  time  and  place  are  added  to  every  material  facv,  as 
well  in  indictments  for  misdemeanors,  as  in  indictments  for  felony. 

*  Archbold,  Crim.  PI.  (London  ed.  1853),  553. 


40  ASSAULT.  [CKAP.  VIII. 

any  legal  warrant,  anthority,  or  reasonable  or  justifiable  cause 
whatsoever,  did  imprison,  and  detain  so  imprisoned  for  a  long 
space  of  time,  to  wit,  for  the  space  of  ten  hours  then  next  fol- 
lowing,* and  other  wrongs  to  the  said  J.  N.  then  and  there  did ; 
to  the  gi-eat  damage  of  the  said  J.  N.,  and  against  the  peace 
of  said  Commonwealth.  If  any  money  were  extorted  from 
the  prosecutor  for  setting  him  at  liberty,  add  an  averment  of  it 
immediately  after  the  asterisk,  thus:  —  and  until  the  said 
J.  N.  had  paid  the  said  C.  D,  the  sum  4^  one  hundred  dollars 
of  the  moneys  of  the  said  J.  N.,  for  his  enlargement;  and 
other  wrongs,  etc.,  as  above.  Add  a  count  for  a  comjuon 
assault. 


4.  For  throwing  corrosive  fluid,  ivith  intent,  etc} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord  ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  in  and  upon  one  A.  B.  did 
make  an  assault,  and  then  and  there  unlawfully  and  mali- 
ciously did  cast  and  throw  upon  the  said  A.  B.  a  certain  cor- 
rosive fluid,  to  wit,  one  pint  of  oil  of  vitriol,  with  intent  in  so 
doing  then  and  there  and  thereby  the  said  A.  B.  to  burn,  and 
the  said  A.  B.  thereby  then  and  there  did  grievously  burn ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


5,  For  an  assault  vj/on  a  woman  pregnant  tvitli  child. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  Ihe  county  of  S.,  laborer,  on  the  first  day  of  .Tune  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  in  the 


'  In  Ari'liliold's  Criminal  I'leadiii";,  (London  cd.  18.53,)  53  7,  a  precedent 
slmiliir  to  this  is  given,  drawn  on  St.  1  Vict.  di.  8.5,  §  5,  but  it  is  equally 
j»ood  at  common  law.  For  a  i)rccedent  on  tlic  same  statute  for  an  assault 
by  throwing  boiling  water,  see  Regina  n.  Crawford,  1  Uenison,  C.  C.  100; 
2  Carrington  &  Kirwan,  120. 


CHAP.  VIII.]  ASSAULT.  41 

county  of  S.,  in  and  upon  A.  B.  the  wife  of  one  E.  F.,  the 
said  A.  B.  being  then  and  there  pregnant  and  quick  with 
child,  did  make  an  assault,  and  the  said  A.  B.  did  then  and 
there  beat,  wound,  and  ill  treat,  so  that  her  life  was  then 
and  there  and  thereby  greatly  endangered,  by  reason  whereof 
the  said  A.  B.  afterwards,  to  wit,  on  the  first  day  of  July 

in  the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county 

forth  the  said  child  dead,  and  other  \\Tong3  to  the  said  A.  B. 
did  bring  aforesaid,  then  and  there  did ;  against  the  peace 
of  said  Commonwealth. 


6.  For  an  indecent  assault} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully  and  indecently  did  make  an  assault  in  and 
upon  one  A.  B.,  and  did  then  and  there  unlawfully,  inde- 
cently, and  against  the  will  of  the  said  A.  B.  pull  up  the 
clothes  of  the  said  A.  B.,  and  did  then  and  there  unlawfully, 
indecently,  and  against  the  will  of  the  said  A.  B.,  put  and 
place  the  hands  of  the  said  C.  D.  upon  and  against  the  private 
parts  of  the  said  A.  B.,  stating  the  indecent  acts  luhich  will  be 
proved  by  the  evidence,  and  other  ^\1•ongs  to  the  said  A.  B. 
then  and  there  did  ;  against  the  peace,  etc.,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 


7.    For  an  indecent  assault  ivith  intent  to  have  an  improper 

connection? 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  the  county  of  S.,  physician,  on  the  first  day  of  June 


^  Lord  Campbell's  Acts,  by  Greaves,  p.  87. 

^  6  Cox,  C.  C,  Appendix,  p.  xliii.  See  Regina  r.  Stanton,  1  Carrington 
&  Kirwan,  415,  and  the  distinction  pointed  out  in  that  case  by  Mr.  Justice 
Coleridge,  between  an  assault  with  Intent  to  commit  a  rape,  and  an  assault 
with  intent  to  have  an  improper  connection.     And  see  Regiua  i'.  Saunders, 

4* 


42  ASSAULT.  [chap.  VIIL 

in  the  year  of  our  Lord ,  at  B.  in  the  county  of  S.,  did 

unlav^^fally  and  indecently  assault  one  A.  B.,  and  did  then 
and  there  unlawfully  and  indecently,  and  against  the  will  of 
the  said  A.  B.,  put  and  place  the  private  parts  of  the  said 
C.  D.  against  the  private  parts  of  the  said  A.  B.,  and  did  then 
and  there  otherwise  ill  treat  and  ill  use  her;  against  the 
peace  of  said  .Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


8.  For  an  indecent  assault  by  other  means} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  at  B.  in  the  county  of  S.,  did  unlaw- 
fully and  indecently  assault  one  A.  B.,  and  did  then  and 
there  unlawfully  and  indecently,  and  against  the  will  of  the 
said  C.  D.,  pull  and  strip  the  clothes  of  the  said  C.  D.,  from 
and  off  the  body  of  the  said  C.  D.,  and  did  then  and  there 
otherwise  ill  treat  and  ill  use  her ;  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


9.  For  a  felonious  assault^  in'th  intent  to  maim.  —  Rev.  Sts.  of 
Mass.  ch.  125,  §  11.2 

That  C.  D.  late  of  B.  in  the  county  aforesaid,  laborer,  on 

8  Carriiigtoii  &  Payne,  265  ;  Rogina  v.  Williams,  8  Carrington  &  Payne, 
280.  The  act  being  done  fraudulently  will  support  the  averment  that  it  was 
against  the  Avill  of  the  prosecutrix.  This  form  seems  applicable  where  actual 
connection  has  talcen  phice  under  circumstances  involving  any  legal  assault, 
but  no  liighcr  offence.  See  Rogina  v.  Case,  1  Denison,  C.  C.  5.S0  ;  4  Cox, 
C.  C.  220;  1  Eng.  Law  and  llq.  R.  544;  1  Temple  &  J\Iew,  C.  C.  318. 

'  G  Cox,  C.  C,  Appendix,  p.  xliii.  "  This  indictment  is  framed  Avith  refer- 
ence to  the  case  of  Rex  v.  Rosinski,  1  Mooily,  C.  C  1!);  1  Lcwin,  C.  C.  11, 
where  it  was  lield,  tliat  a  medical  man  making  a  female  patient  strij)  naked 
under  ihi'  ])rc(cnc('  that  Ik;  could  not  otlicrwise  judge  of  licr  illness,  is  an 
as.iaull,  if  he  iiimself  assist cil  to  take  olf  the  clothes." 

*  On  this  indictment  the  dcliiidant  in.iy  lie  convicted  of  the  assault,  and 
acquitted  of  tlio  intent.     MclJriiJe  i;.  The  tStiite,  2  English,  (Arkansas,)  374. 


CHAP.  Vlir.]  ASSAULT.  43 

the  first  day  of  June   in  the  year  of  our  Lord ,  with 

force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the 
said  C.  D.  being  then  and  there  armed  with  a  certain  danger- 
ous weapon,^  to  wit,  a  knife,  in  and  upon  one  A.  B.  feloniously 
did  make  an  assault,  with  the  malicious  intent  the  said  A.  B. 
then  and  there  to  maim  and  disfigure,  by  then  and  tliere 
feloniously  and  maliciously  cutting  off  the  left  ear  of  the  said 
A.  B. ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

10.  For  a  felonious  assault  unth  intent  to  murder.  —  Rev.  Sts. 
of  Mass.  ch.  125,  §  11.2 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  with 
force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in 
and  upon  one  J.  N.  with  a  certain  dangerous  weapon,^  to  wit, 
with  a  knife,  with  which  the  said  C.  D.  was  then  and  there 
armed,  feloniously,^  wilfully,  and  of  his  malice  aforethought 

^  When  the  assault  is  alleged  to  have  been  committed  with  a  "  deadly- 
weapon,"  in  the  language  of  the  statute,  it  is  a  sufficient  description  of  the 
instrument  used.  The  State  v.  Seamons,  1  Iowa,  418.  And  when  the 
assault  is  charged  to  have  been  made  with  an  axe,  it  w^ill  be  inferred  that  it 
was  a  deadly  weapon  without  sucli  allegation.  Dollarhide  v.  The  United 
States,  1  Morris,  233. 

-  On  this  count  the  defendant  may  be  convicted  of  the  assault  only, 
although  there  is  no  count  charging  the  minor  oS'ence.  The  State  v.  Coy,  2 
Aikens,  181;  The  State  t>.  Kennedy,  7  Blackford,  233;  Gardenhier  v.  The 
State,  6  Texas,  348.  In  Connecticut,  under  St.  1830,  the  juiy  may  find  a 
verdict  of  "guilty  of  an  assault,  with  intent  to  kill,  but  not  with  malice  afore- 
thought." The  words,  "  with  actual  violence,"  in  that  statute,  are  not  a  tech- 
nical phrase,  necessary  to  be  charged  ;  an  averment,  that  the  defendant, 
with  a  knife,  stabbed,  cut,  etc.,  is  equivalent  to  the  words  actual  violence. 
The  State  v.  Nichols,  8  Connecticut,  496. 

'  It  is  not  necessary  to  state  the  Instrument  or  means  made  use  of  by  the 
assailant.  The  State  v.  Dent,  3  Gill  &  Johnson,  8.  But  see  contra,  Beasley 
V.  The  State,  18  Alabama,  535 ;  Trexler  v.  The  State,  19  Alabama,  21. 

*  In  Massachusetts,  in  an  early  case,  it  was  held,  that  an  assault  with  intent 
to  commit  murder,  is  not  a  felony  by  common  law,  or  by  St.  1804,  ch.  123, 
although  that  statute  declares  that  the  defendant  shall  "  be  deemed  a  feloni- 


44  ASSAULT.  [CIIAP.  VIII. 

did  make  an  assault,  with  intent  the  said  J.  N.^  then  and 
there,  with  the  knife  aforesaid,  feloniously,  wilfully ,2  and  of 
his  malice  aforethought,^  to  kill  and  murder;^  whereby,  and  by 
force  of  the  statute  in  such  case  made  and  provided,  the  said 
J.  N.  is  deemed  a  felonious  assaulter.  *  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say  and  present,  that  the 
said  C.  D.,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  on  the  said  first  day  of  June  in  the  year  aforesaid, 
feloniously  assaulted  the  said  J.  N.  in  manner  and  form 
aforesaid;*^  against  the  peace  of  said  Commonwealth,  and 


ous  assaulter."  Commonwealth  v.  Barlow,  4  Mass.  (Rand's  ed.),  *4.39,  (1808). 
But  by  St.  1852,  cli.  37,  it  is  now  a  felony;  and  where  the  offence  amounts 
to  felon}-,  the  indictment  should  aver  that  the  assault  was  feloniously  made, 
and  will  be  defective  if  the  averment  be  omitted.  1  Starkie,  Crim.  PI.  (Lon- 
don ed.  1828),  91  ;  Rex  v.  Pelfryman,  2  Leach,  C.  C.  (4th  London  ed.),  563  ; 
"Williams  v.  The  State,  8  Humphreys,  585.  And  sec  Commonwealth  v. 
Chapman,  7  The  Monthly  Law  Reporter,  N.  s.  155.  But  if  the  aver- 
ment is  improperly  made,  it  may  be  rejected  as  surplusage,  and  the  d-efend- 
ant  be  punished  for  the  misdemeanor.  Commonwealth  v.  Squire,  1  Metcalf, 
258. 

^  It  must  be  alleged  that  the  assault  was  made  on  a  certain  jDcrson,  with 
intent  to  kill  that  person ;  an  allegation  of  an  intent  to  kill  generally,  is 
insufTieicint.     Jones  r.  The  State,  11  Smedes  &  Marshall,  315. 

*  Where  the  indictment  charged  that  the  defendant  upon  one  A.  B., 
"  feloniously,  unlawfully,  and  of  his  malice  aforethought,  with,  etc.,  did  make 
an  assault,  with  intent  him  the  said  A.  B.  feloniously,  unlawfully,  and  of  his 
malice  aforethought,  to  kill  and  murder,"  it  was  held,  that  these  words  suffi- 
ciently charged  that  the  act  was  done  wilfully,  although  the  Avord  "  wilfully  " 
was  not  used.  McCoy  v.  The  State,  3  English,  (xVrkansas,)  551.  It  is  not 
necessary  that  the  assault  should  be  charged  to  have  been  made  unlawfully. 
The  State  v.  Williams,  3  Foster,  (N.  II.)  321. 

'  It  is  necessary  to  charge  that  the  act  was  done  feloniously,  and  with  mal- 
ice aforethought.  It  is  not  sufficient  that  this  allegation  is  made  in  that  part 
of  the  indiclnient  which  charges  the  assault.  The  State  v.  Howell,  Georgia 
Decisions,  158. 

*  The  particular  f-lony  intcndt.-d  to  be  conmiitted  must  be  alleged.  The 
State  V.  Ilailstock,  2  Blackford,  257. 

'  The  allegation  between  the  asterisks,  "  And  so  the  jurors  aforesaid,"  etc., 
is  surplusage,  and  may  be  rejected.  Sec  Ryalls  v.  Ilegina,  11  (Queen's 
r.cuch  Rep.  781  ;  3  Co.\,  C.  C.  30;  Rice  v.  The  Commonwealth,  12  Met- 
calf, 240,  218. 


CHAP.  VIII.]  .    ASSAULT.  45 

contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


11.  For  a  felonious  assault,  with  intent  to  commit  a  rape. 
Rev.  Sts.  of  Mass.  ch.  125,  §  19.i 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord  ,  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and 
upon  one  J.  N.  feloniously  ^  did  make  an  assault,  with  intent 
the  said  J.  N.  then  and  there  feloniously  to  ravish  and  car- 
nally know,  by  force  and  against  her  will  ;^  against  the  peace, 
etc.,  and  contrary,  etc. 


12.  For  a  felonious  assault,  ivith  intent  to  abuse  a  child  under 
the  age  of  ten  years. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  A.  B.,  the  said  A.  B.  then  and  there  being  a  female  child 
under  the  age  of  ten  years,  to  wit,  of  the  age  of  eight  years, 
feloniously,  did  make  an  assault,  with  intent  the  said  A.  B. 


^  Where  the  jury  returned  a  verdict  that  the  defendant  was  "  not  guilty  of 
an  assault  M'ith  an  attempt  to  commit  a  rape  in  manner  and  form,"  etc.,  but 
that  he  was  "  guilty  of  an  assault  upon,  and  improper  and  unlawful  inter- 
course with  the  said  J.  N.,  at  the  tipie  and  place  alleged,"  it  was  held,  that 
this  was  not  a  special  verdict,  but  that  the  defendant  might  be  sentenced  for 
a  simple  assault.     Commonwealth  v.  Fischblatt,  4  Metcalf,  354. 

-  It  is  necessary  to  charge  that  the  assault  was  felonious.  Williams  v.  The 
State,  8  Humphreys,  585.  In  Pennsylvania,  the  offence  being  a  misde- 
meanor only,  the  omission  of  the  word  "  feloniously  "  does  not  vitiate  the 
indictment.     Stout  r.  The  Commonwealth,  11  Sergeant  &  Rawle,  177. 

^  The  words  did  "  assault,"  etc.,  "  with  intent,"  etc.,  "  feloniously  to  ravish 
and  carnally  know,  forcibly  and  against  *her  will,"  etc.,  are  necessary.  And 
an  indictment  charging  that  the  defendant  "  did  feloniouslj'  attempt  to  com- 
mit a  rape  on  one  A.  B.,"  etc.,  witiiout  the  other  technical  words,  is  insuffi- 
cient.    SuUivant  v.  The  State,  3  English,  (Arkansas,)  400. 


46  ASSAULT.  -  [chap.  VIII. 

then  and  there  feloniously  to  unlawfully  and  carnally  know 
and  abuse  ;i  against  the  peace,  etc.,  and  contrary  to  the 
form,  etc. 


13.  For  a  felonious  assaidt  iipon  a  hoy,  with  intent  to  commit 
the  crime  against  nature? 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon 
one  J.  N.,  the  said  J.  N.  being  then  and  there  a  male  child  of 
the  age  of  eight  years,  feloniously  did  make  an  assault,  *  with 
intent  then  and  there  feloniously,  and  against  the  order  of 
nature,  to  commit  the  abominable  and  detestable  crime 
against  nature,  with  the  said  J.  N.,  by  then  and  there  having 
carnal  jvuowledge  of  the  body  of  the  said  J.  N. ;  ^  against  the 
peace,  etc.,  and  contrary  to  the  form,  etc. 

14.  For  a  felonious  assanlt,  unth  intent  to  rob,  being"  tinned. 
Rev.  Sts.  of  Mass.  ch.  125,  §  14. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  said  C.  D. 
being  then  and  there  armed  with  a  certain  dangerous  weapon,* 


^  An  indictment  charging  an  assault  upon  a  child  under  ten  years  of  age, 
"  with  intent  feloniously  to  ravish,  and  feloniously  to  carnally  know,"  etc.,  is 
pood.  The  words  "  to  ravish  "  may  be  rejected  as  surplusage.  McComas  v. 
The  State,  11  Missouri,  11  (J. 

*  This  crime  is  ])unishal)le  in  Maryland  by  St.  1793,  ch.  57.  Davis  v.  The 
State,  '■>  Harris  &  Johnson,  154. 

'  From  the  nsterisfc  the  count  may  he  varied  as  folloivs:  —  with  intent  that 
detestable  and  abominable  crime,  not  to  be  named  among  Christians,  called 
Bodomy,  with  the  said  J.  N.  then  and  there  feloniously,  wickedly,  diabolically, 
and  against  the  order  of  nalurn  to  do  and  conimit.  ^Matthews,  Crim.  Law, 
423. 

*  By  omitting  this  allegation,  this  count  will  be  stilTicient  under  the  Rev. 
Sts.  ch.  125,  §  IC,  for  an  assault  with  intent  to  rob,  not  being  armed.     See 


CHAP.  VIII.]  ASSAULT.  47 

to  wit,  an  axe,  in  and  upon  one  J.  N.  feloniously,  and  with 
force  and  violence,  did  make  an  assault,  with  intent  the 
moneys,  goods,  and  chattels  of  the  said  J.  N.  from  the  person 
and  against  the  will  of  the  said  J.  N.  then  and  there  feloni- 
ously, and  by  force  and  violence,  and  by^  assault  and  putting 
in  fear,  to  rob,  steal,  take,  and  carry  away;  against  the  peace, 
etc.,  and  contrary  to  the  form,  etc. 

15.  For  assaidUng'  and  ohsiructbig  an  officer  in  the  discharge 
of  his  duties} 

*      The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of  our  Lord ,  at  B.  in  the  county 

of  S.,  J.  S.  then  and  there  being  one  of  the  constables  of  B. 
aforesaid,  in  the  county  aforesaid,'-^  legally  authorized  and  duly 
qualified  to  perform  and  'discharge  the  duties  of  said  office, 


Larned  v.  The  Commonwealth,  12  Metcalf,  240;  Commonwealth  v.  Squire, 
1  Metcalf,  258.  For  a  precedent  under  the  statute  of  Illinois,  sec  Conolly 
V.  The  State,  3  Scammon,  477. 

*  For  another  precedent  for  this  offence,  see  The  State  r.  Hooker,  1 7  Ver- 
mont, 658.  The  indictment  must  show  what  the  process  is,  and  that  it  is 
legal,  and  in  the  hands  of  a  proper  officer ;  but  it  is  not  necessary  to  set  it 
out  in  haec  verha.  Cantrill  v.  The  People,  3  Oilman,  356;  McQuoid  v.  The 
People,  3  Oilman,  76  ;  The  State  v.  Ilailey,  2  Strobhart,  73.  And  see  The 
State  V.  Downer,  8  Vermont,  424.  But  if  the  indictment  does  not  techni- 
cally charge  an  assault  on  an  officer  while  in  the  discharge  of  the  duties  of 
his  office,  and  obstructing  and  hindering  him  therein,  this  is  not  a  ground 
for  arresting  the  judgment,  but  only  for  sentencing  the  defendant  for  a  simple 
assault.  Commonwealth  r.  Kirby,  2  Cushing,  577;  The  State  v.  Ilailey,  2 
Strobhart,  73. 

"^  This  is  a  sufficient  allegation  that  lie  was  a  constable.  2  Starkie,  Crim. 
PI.  (London  ed.  1828),  407,  note  (n).  And  gee  ante,  p.  3,  note  2.  An 
indictment,  which  alleged,  in  the  first  count,  that  an  assault  was  made  on  one 
Smith,  "  then  and  there  being  sheriff  of  the  county  of  Addison,"  and  In  the 
second  count  charged  that  the  defendant  "  hindered  and  impeded  a  civil 
officer,  under  the  authority  of  this  Stat(^,  to  wit,  Adnah  Smith,  sheriff"  of  the 
county  of  Addison  aforesaid,"  and  in  both  counts  alleged  that  Smith  was  lu 
the  execution  of  his  said  office,  was  held  to  charge  with  sufficient  certainty, 
in  both  counts,  that  Smith  was  sheriff.  The  State  v.  Hooker,  1 7  Vermont, 
658. 


48  ASSAULT.  [CIIAP.  VIII. 

brought  one  J.  N.  before  A.  C.  esquire,  then  and  yet  being 
one  of  the  justices  of  the  peace  within  and  for  said  county  of 
M.  legally  authorized  and  duly  qualified  to  perform  and  dis- 
charge the  duties  of  said  office ;  and  the  said  J.  N.  was  then 
and  there  charged  before  the  said  A.  C.  by  one  E.  F.  upon 
the  oath  of  the  said  E.  F.  that  the  said  J.  N.  had  then  lately 
before,  by  force  and  against  her  will,  feloniously  ravished  and 
carnally  known  the  said  E.  F.,  and  the  said  J.  N.  was  then 
and  there  examined  before  the  said  A.  C.  the  justice  afore- 
said, touching  the  said  offence  so  to  him  charged  as  aforesaid  ; 
upon  which  the  said  A.  C.  the  justice  aforesaid,  did  then  and 
there  make  a  certain  warrant  under  his  hand  and  seal,  in  due 
form  of  law,  bearing  date  the  said  first  day  of  June  in  the 
year  aforesaid,  directed  to  the  keeper,  or  his  deputy,  of  the 
Commonwealth's  jail,  situate  at  B.  aforesaid,  in  the  county 
aforesaid,  commanding  the  said  keeper,  or  his  deputy,  that  he 
should  receive  into  his  custody  the  said  J.  N.  brought  before 
the  said  A.  C.  and  charged  upon  the  oath  of  the  said  E.  F., 
with  the  premises  above  specified ;  and  the  said  justice,  by 
the  said  warrant,  did  command  the  said  keeper,  or  his  deputy, 
of  the  said  jail,  to  safely  keep  the  said  J.  N.  there  until  he,  by 
due  course  of  law,  should  be  discharged ;  which  said  warrant 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  B.  afore- 
said, in  the  county  aforesaid,  was  delivered  to  the  said  J.  S., 
then  being  one  of  the  constables  of  said  B.  as  aforesaid,  and 
then  and  there  having  the  said  J.  N.  in  his  custody  for  the 
cause  aforesaid ;  and  the  said  J.  S.  was  then  and  there  com- 
manded l)y  the  said  A.  C.  the  justice  aforesaid,  to  convey  the 
said  .J.  N.  forthwith  to  the  said  jail,  and  to  deliver  the  said 
J.  N,  to  tlie  keeper  of  the  said  jail,  or  his  deputy,  together 
with  the  warrant  aforesaid.  And  the  jnrors  aforesaid,  upon 
their  oath  a  fore-said,  do  further  ])resent,  that  G.  II.  late  of  B. 
aforesaid,  in  Ihe  county  aforesaid,  laborer,  and  M.  N.  late  of 
the  same  i)laee,  laborer,  then  and  there  well  knowing  the 
premises,  afterwords,  and  whilst  the  said  J.  N.  was  in  the 
custody  of  the  said  J.  S.  under  the  said  warrant  as  aforesaid, 
and  whilst  Ihe  said  .1.  S.  was  conveying  the  said  J.  N.,  under 
and  by  virtue  of  said  warrant,  to  the  said  Commonwealth's 


CHAP.  VIII.]  ASSAULT.  49 

jail  situate  at  B.  aforesaid,  to  wit,  on  the  day  and  year  last 
aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  the  said  J.  S.,  then  and  there  being  a 
constable  as  aforesaid,  in  the  due  and  legal  exercise  and  per- 
formance of  the  duties  of  said  office  then  and  there  being, 
and  then  and  there  lawfully  having  the  said  J.  N.  in  his  cus- 
tody, by  virtue  of  the  said  warrant  for  the  cause  aforesaid, 
did  make  an  assault,  and  the  said  J.  S.  then  and  there  did 
beat,  wound,  and  ill  treat,  and  then  and  there,  while  the  said 
J.  N.  was  in  the  due  and  lawful  execution  of  his  said  office, 
the  said  J.  N.  unlawfully,  knowingly,  and  designedly,^  did 
obstruct,  hinder,  and  oppose,  by  then  and  there  assaulting, 
beating,  and  threatening  ^  the  said  J.  N.  then  and  there  being 
in  the  due  and  lawful  exercise  and  performance  of  his  said 
office  as  aforesaid;  against  the  peace,  etc.,  and  contrary  to 
the  form,  etc. 


*  This  is  a  sufficient  allegation,  that  the  defendant  knew  that  the  person 
assaulted  was  an  officer.     Commonwealth  v.  Kirby,  2  Cashing,  277. 

*  As  to  the  necessity  of  describing  the  mode  of  obstruction,  see  The  State 
V.  Ilailey,  2  Strobhart,  73;  McQuoid  v.  The  People,  2  Oilman,  76;  The 
State  V.  Downer,  8  Vermont,  42-4. 


CHAPTER    IX. 


ATTEMPTS   TO    COMMIT   CRIMES. 


An  attempt  to  commit  a  felony  is  a  misdemeanor,  and 
though  the  crime  be  but  a  misdemeanor,  is  itself  a  misde- 
meanor. And  to  constitute  such  attempt,  there  must  be 
an  intent  that  the  crime  should  be  committed  by  some  one, 
and  an  act  done  pursuant  to  that  intent.^  In  some  of  the 
United  States,  the  attempt  to  commit  a  crime  is  punishable 
by  statute.  It  is  not  necessary  that  it  should  be  strictly 
charged  in  the  indictment,  that  the  act  attempted  was  a  crime 
jDunishable  by  law,  provided  it  appear  to  be  so  from  the  facts 
alleged.^  Neither  is  it  necessary  to  charge  the  offence  with  as 
much  exactness  as  in  an  indictment  for  the  crime  itself.^ 

1.   For  an  attcmpl  to  hum  a  di/.wnmg--hoi(se.  —  Rev.  Sts.  of 
Mass.  ch.  183,  §  12.* 

That  Michael  Flynn,  late  of  B.  in  the  county  of  S.,  laborer, 

*  Rex  V.  Iliggins,  2  East,  5  ;  Rex  v.  Kinnersley,  1  Strange,  1 03,  1 OC  ; 
Commonwealth  i'.  Harrington,  3  I'ickering,  2G  ;  Regina  r.  IMereditli,  8  Car- 
rington  &  Payne,  589,  590;  Rex  v.  Roderick,  7  Carrington  &  Payne,  795; 
Rex  V.  Butler,  6  Carrington  &  Payne,  368 ;  Commonwealth  v.  McDonald,  5 
Cusliing,  305;  Commonwealth  v.  Clark,  G  Grattan,  675;  Ulil  v.  The  Com- 
monweahh,  6   (irattan,  706. 

'  Commonwealth  r.  Flynn,  3   Gushing,  529. 

*  Rex  r.  Iliggins,  2  East,  5.  And  see  Regina  r.  Marsh,  1  Donison,  C.  C. 
505;  1  'J'emple  &  IMcw,  C.  C.  192;  Ilackett  v.  The  Gonuuonwcallh,  15 
Pennsylvania  State  Rep.  95. 

*  It  is  not  ncfessary  to  describe  the  combustible  materials  used  for  the 
purp<rsc;  Commonwealth  v.  Elynn,  3  Gushing,  529;  nor  the  particular  man- 
ner in  which  the  attcnii>l  was  made.    Tlie  i'copic,  v.  IJush,  4  Ilill,  (N.  Y.)  133. 


CHAP.  IX.]  ATTEMPTS   TO    COMMIT   CRIMES.  51 

on  the  first  day  of  June  in  the  year  of  our  Lord  ,  at 

B.  in  the  county  of  S.,  did  feloniously,  wilfully,  and  mali- 
ciously attempt  to  set  fire  to  and  burn  a  certain  dwelling- 
house  of  one  Henry  Spear,  then  occupied  by  one  Frederic 
Better,  there  situate,  and  in  such  attempt  did  then  and  there 
place  a  quantity  of  combustible  materials  on  certain  boards 
under  said  dwelling-house,  and  did  then  and  there  set  fire  to 
said  combustible  materials,  with  the  intent  thereby  then  and 
there  to  burn  said  dwelling-house ;  but  the  said  Flynn  did 
then  and  there  fail  in  the  perpetration  of  said  offence,  so  as 
aforesaid  attempted  to  be  perpetrated  by  him  ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

2.  For  an  attempt  to  hum  a  divelUng-house  in  the  night  time, 
by  breaking  and  entering  a  building,  and  setting  fire  to 
the  same.  —  Rev.  Sts.  of  Mass.  ch.  133,  §  12.^ 

That  John  Harney,  late  of,  etc.,  on  the  seventh  day  of  May 

in  the  year  of  our  Lord  ,  at  Roxbury  in  the  county  of 

Norfolk,  in  the  night  time  of  the  same  day,  did  attempt  wil- 
fully and  maliciously  to  set  fire  to  and  burn,  in  the  night  time, 
a  certain  dwelling-house  there  situate,  of  one  Bernard  Wal- 
mire,  and  in  such  attempt  did  then  and  there  break  and  enter 
a  certain  outhouse  then  and  there  situated,  of  the  said  Wal- 
mire,  and  within  the  curtilage  of  said  dwelling-house,  and 
did  then  and  there  procure  ajid  collect  together  certain 
shavings  and  combustible  substances,  and  did  then  and 
there  in  said  outhouse,  set  fire  to,  kindle,  and  burn  said 
shavings  and  combustible  substances,  with  the  intent  then 
and  there  to  set  fire  to  and  burn,  in  the  night  time,  the  dwell- 
ing-house aforesaid,  and  towards  the  commission  of  such 
offence,  but  was  then  and  there  intercepted  and  prevented  in 
the  execution  of  the  same ;  against  the  peace  of  said  Com- 


*  This  count  is  not  bad  for  duplicity,  although  it  sets  forth  a  breaking  and 
entering  of  the  building,  as  well  as  an  attempt  in  the  building,  after  the 
breach,  to  set  fire  to  it.     Commonwealth  r.  Harney,  10  Metoalf,  422. 


52  ATTEMPTS   TO    COMMIT   CRIMES.  [CHAP.  IX. 

monwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


3.  For  an  attempt  to  commit  a  larceny  from  the  person  of  an 
individual,  by  picking  his  pocket. —  Rev.  Sts.  of  Mass. 
ch.  133,  §  12.1 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  at  B.  in  the 

county  of  S.,  did  attempt  to  commit  an  offence  prohibited  by 
law,  to  wit,  did  attempt,  with  force  and  arms,  feloniously  to 
steal,  take,  and  carry  away,  from  the  person  of  one  A.  B.  his 
personal  property  then  in  his  pocket  and  in  his  possession, 
that  being  an  offence  prohibited  by  law,  and  in  such  attempt 
did  then  and  there  do  a  certain  overt  act  towards  the  commis- 
sion of  said  offence,  to  wit,  did  then  and  there,  with  force  and 
arms,  feloniously  and  with  intent  then  and  there  feloniously 
to  steal,  take,  and  carry  away,  the  property  of  the  said  A.  B., 
then  and  there  being  in  his  pocket  on  his  person,  thrust, 
insert,  put,  and  place  his  said  C.  D.'s  hand  into  the  pocket  of 
the  said  A.  B.,  without  his  knowledge  and  against  his  will, 
but  said  C.  D.  then  and  there  did  fail  in  the  perpetration  of 
said  offence  of  stealing  from  the  person  of  said  A.  B.,  and 
was  then  and  there  intercepted  and  prevented  in  the  execu- 
tion of  the  same ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

4.  For  an  attempt  to  murder  by  drowning'. 
That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

'  It  is  not  nccftssary  to  allege  or  prove,  that  the  party,  at  the  time  of  the 
altfiii|it,  li.nl  ;iiiy  tliiii;:  in  his  pocket,  which  could  be  the  subject  of  larceny. 
Ko;;<,TM  c. 'i'liu  {'oiiuiiiiiiwealth,  5  Sergeant  &  llawle,  463;  Commonwealth 
V.  McDonahl,  •")  dishing,  ;]C,r>.  "This  decision,"  said  Fletcher,  J.,  "is 
conlincfl  U)  the  jiarticulai*  case  under  (consideration,  of  an  atfenipt  to  steal 
from  tlie  pcrsftn  ;  as  ihcn;  may  jx-rhaps  be  cases  of  an  attempt  to  steal,  where 
it  would  be  necessary  to  set  out  the  particular  pniperty  attempted  to  be 
stolen,  and  the  value." 


CHAP.  IX.]  ATTEMPTS   TO    COMMIT   CRIMES.  53 

first  day  of  June  in  the  year  of  our  Lord  ,  at  B.  in  the 

county  of  S.,  feloniously,  wilfully,  and  maliciously  did  attempt 
to  commit  the  crime  of  murder,  by  then  and  there  feloniously, 
wilfully,  and  maliciously  taking  one  A.  B.  into  both  the  hands 
of  the  said  C.  D.,  and  then  and  there  feloniously,  wilfully,  and 
maliciously  casting,  throwing,  and  pushing  the  said  A.  B.  into 
a  certain  pond,  wherein  there  was  a  great  quantity  of  water, 
and  thereby  then  and  there  feloniously,  wilfully,  and  mali- 
ciously attempting  the  said  A.  B.  to  drown,  with  intent 
thereby  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  the  said  A.  B.  to  kill  and  murder ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

5.  For  an  attempt  to  murder  hj  poisoning. 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord ,  at  B.  in  the 

county  of  S.,  feloniously,  wilfully,  and  maliciously  did  at- 
tempt to  commit  the  crime  of  murder,  by  then  and  there 
feloniously,  wilfully,  and  maliciously  administering  to  one 
A.  B.,  a  large  quantity,  to  wit,  two  drachms  of  a  certain 
deadly  poison,  called  white  arsenic,  thereby  then  and  there 
feloniously,  wilfully,  and  maliciously  attempting  the  said 
A,  B.  to  poison,  with  intent  thereby  then  and  there  the  said 
A.  B.  feloniously,  wilfully,  and  of  his  malice  aforethought  to 
kill  and  murder ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

6.  For  attempting'  to  commit  suicide} 

The  jurors,  etc.,  upon  their  oath  present,  that  Marian,  the 
wife  of  Henry  Thomas  Johnson,  late  of  B.  in  the  county  of 
S.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 
,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 

'  5  Cox,  C.  C.  Appendix,  p.  xcii. 

5* 


54  ATTEMPTS   TO    COMMIT   CRIMES.  [CHAP.  IX. 

said,  unlawfully  and  wilfully  did  cast  and  throw  herself  from 
and  off  a  certain  steamboat  called  The  Bee,  then  and  there 
being  propelled  along  the  waters  of  a  certain  river  there,  called 
the  Thames,  into  the  waters  of  the  said  river,  with  the  wicked 
intent  and  purpose  of  then  and  there  feloniously,  wilfully,  and 
of  her  malice  aforethought,  choking,  suffocating,  drowning, 
and  murdering  herself  in  and  by  the  waters  aforesaid.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  M.  J.,  on  the  day  and  year  aforesaid,  at  B.  aforesaid, 
in  the  county  aforesaid,  unlawfully,  wilfully,  and  wickedly 
did  attempt  and  endeavor  feloniously,  wilfully,  and  of  her 
malice  aforethought,  to  kill  and  murder  herself  in  the  manner 
aforesaid  ;  against  the  peace,  etc. 


CHAPTER    X. 


BARRATRY. 

Every  indictment  for  the  crime  of  Barratry  must  charge 
the  defendant  with  being  a  "  common  barrator,"  which  is  a 
term  of  art  appropriated  by  law  to  this  offence,  and  cannot  be 
supplied  by  words  of  like  import,  such  as  common  oppressor 
and  disturber  of  the  peace,  or  a  stirrer  of  strife  among  neigh- 
bors.i  But  the  indictment,  in  its  common  form,  after  charg- 
ing that  the  defendant  was,  and  yet  is,  a  "  common  barrator," 
proceeds  to  state  that  the  defendant  "  on  the  first  day  of  June, 
etc.,  and  on  divers  others  days  and  times,  at,  etc.,  divers  quar- 
rels and  sti'ifes,  suits  and  controversies,  among  the  honest  and 
quiet  lawful  citizens  of  said  Commonwealth,  then  and  there 
did  move,  procure,  stir  up,  and  excite,  etc."  ^  The  law  is 
clearly  settled,  that  no  one  can  be  guilty  of  this  offence,  in 
respect  to  one  act  only.  Three  distinct  acts  at  least,  are 
necessary  to  constitute  a  common  barrator.^ 

With  respect  to  the  form  of  the  indictment  for  this  offence, 
it  is  to  be  further  observed,  that  it  seems  to  be  unnecessary  to 
allege   any   particular   crime,   or,  according  to  the   English 

^  Commonwealth  v.  Davis,  11  Pickering,  432 ;  Rex  v.  Hardwioke,  1  Sldcr- 
fin,  282;  Rex  v.  Urlyn,  2  Saunders,  308,  note  (1);  1  Hawkins,  P.  C.  ch.  27, 
§  5 ;  8  Co.  36. 

2  1  Gabbett,  Crim.  Law,  137. 

^  The  case  of  The  Barrators,  8  Rep.  36;  Commonwealth  v.  Davis,  11 
Pickering,  432,  436  ;  Dewey,  J.,  Commonwealth  v.  Tubbs,  1  dishing,  3.  In 
Commonwealth  r.  McCulloch,  15  Mass.  227,  the  defendant  was  held  not 
guilty  of  barratry,  because  there  was  no  oppression  in  bringing  three  suits 
before  a  justice  of  the  peace,  instead  of  one  in  the  Court  of  Common  Pleas, 
the  costs  of  the  three  not  beins;  more  than  those  of  the  one. 


56  BARRATRY.  [CIIAP.  X. 

authorities,  to  allege  the  offence  to  have  been  committed  at 
any  certain  place  ;  for  from  the  nature  of  the  crime,  which 
consists  of  the  repetition  of  several  acts,  it  must  be  supposed 
to  have  happened  in  several  places,  and  therefore  it  has  been 
holden,  that  the  trial  or  jury  process  shall  be  out  of  the  body 
of  the  county.^  But  no  reason  is  perceived,  why  an  indict- 
ment for  this  offence  should  not  charge  it  to  have  been  com- 
mitted at  a  certain  place,  according  to  the  common  rules  of 
criminal  pleading.^  But  though  an  indictment  for  barratry,  in 
a  general  form,  alleging  the  defendant  to  be  a  common  bar- 
rator, without  showing  any  particular  acts,  is  good,  yet  the 
Court  will  not  suffer  the  trial  to  proceed,  unless  the  govern- 
ment has  seasonably,  if  requested,  given  the  defendant  a  note 
of  the  particular  acts  of  barratry  intended  to  be  proved  against 
him.^  And  when  the  note  of  particulars  is  given,  the  govern- 
ment is  not  at  liberty  to  give  evidence  of  any  other  acts  of 
barratry  than  those  which  are  therein  stated.^  But  the  note 
of  particulars  is  no  part  of  the  record,  and  is  not  open  to 
demurrer,  or  motion  in  arrest  of  judgment.  If  the  defendant 
is  really  misled  or  surprised  by  finding  more  than  one  magis- 
trate of  the  same  surname  and  same  initial  to  their  Christian 


*  rarcel's  case,  Cro.  Eliz.  195;  Palfrey's  case,  Cro.  Jac.  527;  1  Hawkins, 
P.  C.  ch.  27,  §  11  ;  1  Gabbett,  Crim.  Law,  137,  138. 

*  In  2  Hale,  P.  C.  180,  it  is  said,  "  In  some  crimes  no  vill  need  be  named 
as  upon  an  indictment  of  barratry,  because  he  is  a  barrator  everywhere,  and 
it  shall  be  tried  de  corpore  cu7nitatus,  T.  43  Eliz.,  B.  K.  Tunstall's  case  ;  but 
P.  3  Car.  B.  R.  Mann's  case,  the  indictment  was  quashed  for  want  of  a  vill 
alle<ied ;  the  latter  resolution  is  fittest  to  be  pursued." 

*  Rex  V.  Wylie,  1  Bosanquet  &  Puller,  92,  95,  Heath,  J.;  Conunonwoalth 
V.  Davis,  11  I'ickerin;!,  432.  A  note  of  particulars,  stating  tliat  "evidence 
will  be  given  concerning  a  complaint  before  A.  B.  esquire,"  sulliciently  des- 
ignates a  proceeding  where  the  complaint  was  made  to  another  magistrate, 
and  tlie  warrant  issued  thereon  was  returned  to  A.  B.  for  a  hearing.  Com- 
monweaitli  r.  Davis,  uhi  supra. 

*  Goddard  v.  Sniitli.G  M(jd<'rn  Ilcp.  202;  1  (Jabl)ett,  Crim.  Law,  138.  But 
see  Ivcson  v.  IVIoorc,  1  Lord  llayniund,  490,  where  Could,  J.,  lays  down  the 
law,  that  after  the  prosecutor  has  proved  the  instances  assigned  in  the  note 
of  parlicuiars,  lie  shall  be  admitted  to  jirove  as  many  more  of  them  as  he 
pleases,  to  aggravate  the  fine. 


CHAP.  X.]  BARRATRY.  57 

names,  or  more  than  one  proceeding  which  would  come  under 
the  designation  in  the  note  of  particulars,  and  not  identified 
by  a  statement  of  time,  it  should  be  shown  as  a  ground  for 
postponing  the  trial.^ 

Barratry  is  an  offence  at  common  law.^  The  indictment 
should  therefore  conclude  "  against  the  peace ; "  and  the  omis- 
sion was  held  to  be  fatal.^  The  indictment  may  also  con- 
clude "  against  the  statute,"  though  no  statute  creates  the 
offence,  nor  provides  any  specific  punishment  for  it.*  Whether 
the  indictment  should  also  conclude  ad  commune  nocumentum, 
is  a  question  upon  which  the  authorities  differ.^     In  Rex  v. 


^Commonwealth  t'.  Davis,  11  Pickering,  432;  The  State  v.  Chltty,  1 
Bailey,  379. 

-  1  Gabbett,  Crim.  Law,  138. 

^  Palfrey's  case,  Cro.  Jac.  527. 

*  1  Hawkins,  P.  C.  ch.  27,  §  10. 

5  In  Hawkins's  Pleas  of  the  Crown,  (bk.  2,  ch.  25,  §  59,)  it  is  said,  "  that 
there  is  no  need,  In  the  conclusion  of  such  an  Indictment,  to  lay  the  offence 
ad  nocumentum  omnium  llgeormn,  etc.,  but  that  diversorum  Is  sufficient  in  such 
an  Indictment,  as  well  as  in  an  Indictment  of  a  common  scold,  etc.,  because 
it  appears  from  the  nature  of  tlie  thing,  that  it  could  not  but  be  a  common 
nuisance."  Starkie,  (1  Crim.  PL,  London  ed.  1828,)  208,  referring  to  the 
above  passage  from  Hawkins,  and  to  Rex  v.  Cooper,  2  Strange,  1246,  contra, 
says,  "  When  the  Indictment  Is  founded  upon  some  act  or  omission,  which  Is 
punishable  as  a  nuisance  to  the  public  In  general.  It  Is  usually  averred  to  have 
been  done  or  omitted,  ad  commune  nocumentum  of  the  king's  subjects;  but 
these  words  are  not  essential,  for  they  neither  describe  the  crime  itself,  nor 
the  facts  which  constitute  It;  and  If  the  facts  charged  must,  from  their  very 
nature,  have  been  a  nuisance  to  society,  it  Is  unnecessary  to  aver  that  which 
the  court  cannot  but  infer.  And  therefore,  though  indictments  against  com- 
mon scolds  and  common  barrators  usually  conclude  ad  commune  nocnm.en- 
twn,  the  conclusion  has  been  deemed  unnecessary."  Archbold,  (Crim.  PI., 
London  ed.  1853,)  55,  also  says, "  Lidictmcnts  for  nuisance  usually  conclude, 
'  to  the  great  damage  and  common  nuisance  of  all  the  liege  subjects  of  our 
said  lady  the  Queen,'  as  well  as  against  the  peace,  etc. ;  but  the  conclusion, 
ad  commune  nocmnentum,  does  not  seem  to  be  essential."  On  the  other 
hand,  Chltty,  2  Crim.  Law,  (Perkins's  ed.),  *233,  note  (y),  on  the  authority 
of  Rex  V.  Cooper,  says  that  this  conclusion  is  necessary.  And  so  Gabbett, 
(2  Crim.  Law,  244,)  on  the  authorit}'  of  the  same  case,  and  also  referring  to 
the  above  passage  from  Hawkins's  Pleas  of  the  Crown,  says,  "But  the  words 
'  to  the  common  nuisance  of  all  the  liege  subjects  of  our  lord  the  King,'  are, 


58  BARRATRY.  [CHAP.  X. 

Cooper,^  it  was  held,  tliat  an  indictment  against  a  scold  must 
be  charged  ad  commune  nocumcntum ;  and  it  is  difficult,  in 
principle,  to  distinguish  that  case  from  that  of  a  common  bar- 
rator. 


1.  Indictment  for  being  a  common  barrator. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord  ,  at  B.  in  the  county  of  S.,  and  on 

divers  other  days  and  times  between  that  day  and  the  day 
of  the  finding  of  this  indictment,  at  B.  aforesaid,  in  the 
county  aforesaid,  divers  quarrels,  strifes,  suits,  and  controver- 
sies among  the  honest  and  peaceable  citizens  of  said  Com- 
monwealth then  and  there  on  the  days  and  times  aforesaid, 
did  move,  procure,  stir  up,  and  excite.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the   said 

C.  D.  at  B.  aforesaid,  in  the  county  aforesaid,  on  said  days 
and  times  was  and  still  is  a  common  barrator ;  to  the  com- 
mon nuisance,  etc.,  and  against  the  peace,  etc. 


properly,  used  in  all  indictments  for  common  nuisances,  and  against  barra- 
tors and  scolds."  And  Purcell,  in  his  late  treatise  on  the  Law  of  Criminal 
Pleading  and  Evidence,  87,  says,  "But  the  words,  'to  the  common  nuisance 
of  all  the  liege  subjects  of  our  lady  the  (Jueen,'  seem,  according  to  the  better 
opinion,  to  be  necessary  in  all  the  indictments  for  common  nuisances,  and 
against  scolds  and  barrators."  In  Massachusetts,  it  has  been  very  recently 
held,  that  an  indictment  for  an  indecent  exposure  of  the  person,  need  not 
conclude  to  the  common  nuisance  ;  Commonwealth  v.  Ilaynes,  Supreme 
Judicial  Court,  Middlesex,  Oct.  T.  1854  ;  nor  a  complaint  for  being  a  com- 
mon drunkard;  Commonwealth  v.  Boon,  Supreme  Judicial  Court,  Mid- 
dlesex, Oct.  T.  1854.  And  see  Itcgina  r.  Holmes,  C  Cox,  C.  C.  21G  ;  20 
Eng.  Law  and  Eq.  Rep.  597;  1  Dcarsly,  C.  C.  207;  3  Carrington  &  Kir- 
wan,  3C0;  Commonwealtli  o.  Smith,  G  Gushing,  80. 
'  2  Strange,  1240. 


CHAPTER    XI. 


BLASPHEMY. 


"  In  general,  blasphemy  may  be  described,"  says  Chief  Jus- 
tice Shaw,  "as  consisting  in  speaking  evil  of  the  Deity  with 
an  impious  purpose,  to  derogate  from  the  divine  majesty,  and 
to  alienate  the  minds  of  others  from  the  love  and  reverence  of 
God."  1  And  all  contumelious  reproaches  of  our  Saviour, 
Jesus  Christ,  all  profane  scoffing  at  the  Holy  Scriptures,  or  ex- 
posing any  part  of  them  to  contempt  and  ridicule,  and  all  writ- 
ings against  the  Christian  religion,  are  regarded  by  the  common 
law  as  blasphemous.2  "  In  most  of  the  United  States,"  says 
Professor  Greenleaf,  "  statutes  have  been  enacted  against  this 
offence ;  but  these  statutes  are  not  understood  in  all  cases  to 
have  abrogated  the  common  law ;  the  rule  being,  that  where 
the  statute  does  not  vary  the  class  and  character  of  an  offence, 
as,  for  example,  by  raising  what  was  a  misdemeanor  into  a 
felony,  but  only  authorizes  a  particular  mode  of  proceeding 
and  of  punishment,  the  sanction  is  cumulative,  and  the  com- 
mon law  is  not  taken  away."  ^  Thus,  it  was  held,  that,  not- 
withstanding the  provisions  of  the  statute  against  blasphemy, 


^  Commonwealth  v.  Kneeland,  20  Pickering,  206,  213. 

*  Andrew  v.  New  York  Bible  Society,  4  Sandford,  156 ;  Updegraph  v. 
The  Commonwealth,  11  Sergeant  &  Rawle,  394;  The  State  i\  Chandler,  2 
Harrington,  (Del.)  553  ;  The  People  v.  Ruggles,  8  Johnson,  290 ;  Common- 
wealth V.  Kneeland,  20  Pickering,  20G  ;  Rex  v.  Woolston,  2  Strange,  834  ; 
Fitzgerald,  64;  Barnardiston,  162;  Rex  v.  Taylor,  1  Ventris,  293;  3  Keble, 
607 ;  Rex  v.  Waddington,  1  Barnewall  &  Cresswell,  26 ;  Rex  v.  Carlile,  3 
Barn  wall  &  Adolphus,  161. 

'  3  Greenleaf,  Ev.  §  69 ;  Commonwealth  v.  Ayer,  3  Cushing,  150. 


60  BLASPHEMY.  [CHAP.  XL 

a  blasphemous  libel  might  be  prosecuted  as  a  common  law 
offeuce.i 


1.  Indictment  for  a  blasphemous  libel. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  the  county  of  S.,  bookseller,  on  the  first  day  of  June 

in  the  year  of  our  Lord  ,  with  force  and  arms,  at  B. 

aforesaid,  in  the  county  aforesaid,  falsely,  maliciously,^  wil- 
fully, and  profanely  did  compose,  print,  and  publish,  and 
cause  and  procure  to  be  composed,  printed,  and  published,^  a 
certain  false,  scandalous,  impious,  blasphemous,  and  profane 
libel,  of  and  concerning  the  Holy  Scriptures  and  the  Christian 
religion,  in  one  part  of  which  said  libel  there  were  and  are 
contained,  among  other  things,  certain  false,  scandalous,  im- 
pious, blasphemous,  and  profane  matters  and  things,  of  and 
concerning  the  Holy  Scriptures  and  the  Christian  religion, 
according  to  the  tenor  following,  that  is  to  say :  here  set  out 
the  libellous  passage ;  and  if  there  be  another  such  passage  in 
another  part  of  the  libel,  introduce  it  thus :  and  in  another  part 
thereof  there  were  and  are  contained,  among  other  things,  cer- 
tain other  false,  scandalous,  impious,  blasphemous,  and  pro- 
fane matters  and  things,  of  and  concerning  the  Holy  Scrip- 
tures and  the  Christian  religion,  according  to  the  tenor  fol- 
lowing, that  is  to  say,  etc.  etc.;*  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

2.  For  blasphemy,  by  blaspheming  the  holy  name  of  God. — 
Rev.  Sts.  of  Mass.  ch.  130,  §  15. 

That  C.  D.  late  of  B.  in  ilic  county  of  S.,  laborer,  on  the 

'  l{<-.\  /•.  Carlile,  .3  Barnwall  &  Adolplius,  IGl. 

'  'J'licsn  wonls  socni  to  bo  necessary.  Sec  tlie  al)lo  (lissentiiig  opinion 
of  Moitoii,  J.  ill   Coiiinionwealtli  v.  Kneeland,  "JO  J'ickering,  200,  2-11. 

'  Tliis  avcniK'iit  is  not  bad  for  duplicity.  2  Cabbett,  Criui.  Law,  234  ; 
Commonwealth  r.  Twitcliell,  4  Gushing,  74,  75. 

*  See  'J'a)>art  v.  Tipper,  1  CaiiiplH'il,  350,  353. 


CHAP.  XI.]  BLASPHEMY.  61 

first  day  of  June  in  the  year  of  our  Lord ,  at  B.  afore- 
said, in  the  county  aforesaid,  did  wilfully  blaspheme  the  holy 
name  of  God,  by  then  and  there  denying,  cursing,  and  con- 
tumeliously  reproaching  God,  his  creation,  government,  and 
final  judging  of  the  world  ;  that  is  to  say,  the  said  C.  D.  then 
and  there,  in  the  presence  and  hearing  of  divers  good  and 
worthy  citizens  of  said  Commonwealth,  did  wilfully,  pro- 
fanely,^  and  blasphemously  speak,  pronounce,  utter,  and  pub- 
lish the  profane  and  blasphemous  words  following,  to  wit, 
here  insert  the  ivords  spoken  and  published^  verbatim,  and  ivith 
proper  innuendoes^  if  the  loords  require  it;^  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


^  Under  the  Pennsylvania  statute  of  1 700,  it  is  necessary  to  aver  that  the 
•words  were  uttered  profanely;  fair  promulgation  of  opinions  respecting 
religion  not  being  criminal.  Updegraph  v.  The  Commonwealth,  1 1  Sergeant 
&  Rawle,  394. 

°  It  seems,  that  it  is  not  sufficient  to  lay  the  substance  of  the  words  alleged 
to  have  been  spoken.  The  words  themselves  must  be  charged,  though  only 
the  substance  need  be  proved.  Updegraph  v.  The  Commonwealth,  11  Ser- 
geant &  Eawle,  394. 


CHAPTER    XII. 

BRIBERY. 

The  offence  is  complete  by  the  offer  of  the  bribe,  so  far  as 
the  olierer  is  concerned.  If  the  offer  is  accepted,  both  parties 
are  guilty. ^ 

1.  Indictment  for  aiiempting  to  bribe  a  constable? 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of  our  Lord ,  at  B.  in  the  county 

of  S.,  one  A.  C,  esquire,  then  and  yet  being  one  of  the  jus- 
tices of  the  peace  within  and  for  the  said  county  of  S.,  duly 
qualified  to  discharge  and  perform  the  duties  of  said  office, 
did  then  and  there  under  a  certain  warrant  under  his  hand 
and  seal,  in  due  form  of  law,  bearing  date  the  day  and  year 
aforesaid,  directed  to  all  constables  and  other  peace  officers  of 
the  said  county,  and  especially  to  J.  N.,  thereby  commanding 
them,  upon  sight  thereof,  to  take  and  bring  before  the  said 
A.  C,  so  being  such  justice  as  aforesaid,  or  some  other  justice 
of  the  peace  within  and  for  the  said  county  of  S.,  the  body  of 
D.  F.  late  of  B.  aforesaid,  in  the  county  aforesaid,  to  answer, 
e/c,  etc.,  as  in  the  ivarrant;  and  which  said  warrant  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  B.  aforesaid, 
in  the  county  aforesaid,  was  delivered  to  the  said  J.  N.  then 
being  one  of  the  constables  of  said  B.,  to  be  executed  in  due 

»  Unitwl  States  v.  Worrall,  2  Dallas,  .ISl  ;  Barcfield  v.  The  State,  14 
Alabama,  CO.'J  ;  .'1  (ircciileaf,  Ev.  §  72;   1  CJabbett,  Criin.  Law,  1C3. 

'  Arcliliold,  Crim.  I'l.  (Am.  cd.  181G),  58(J ;  Matthews,  Crim.  Law,  432  ; 
C  Cox,  C.  C.  Appendix,  p.  cxiv. 


CHAP.  XII.]  BRIBERY.  63 

form  of  law.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  J.  S.,  well  knowing  the  premises, 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  B.  afore- 
said, in  the  county  aforesaid,  unlawfully,  wickedly,  and  cor- 
ruptly did  offer  unto  the  said  J.  N.,  so  being  constable  as 
aforesaid,  and  then  and  there  having  in  his  custody  and  pos- 
session the  said  warrant  so  delivered  to  him  to  be  executed  as 
aforesaid,  the  sum  of  fifty  dollars,^  if  the  said  J.  N.  would 
refrain  from  executing  the  said  warrant,  and  from  taking  and 
arresting  the  said  D.  F.  under  and  by  virtue  of  the  same,  for 
and  during  fourteen  days  from  that  time,  that  is  to  say,  from 
the  time  the  said  J.  S.  so  offered  the  said  sum  of  fifty  dollars  to 
the  said  J.  N.  as  aforesaid.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  J.  N.  on  the  first 
day  of  June  in  the  year  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  in  manner  and  form  aforesaid,  did  unlaw- 
fully attempt  and  endeavor  to  bribe  the  said  J.  N.,  so  being 
constable  as  aforesaid,  to  neglect  and  omit  to  do  his  duty 
as  such  constable,  and  to  refrain  from  taking  and  arresting 
the  said  D.  F.  under  and  by  virtue  of  the  warrant  aforesaid ; 
against  the  peace,  etc. 

'  See  Commonwealth  v.  Chapman,  1  Virginia  Cases,  138. 


CHAPTER    XIII. 


BURGLARY.^ 

An  indictment  for  burglary,  either  at  common  law  or  under 
the  statute,  in  order  to  be  valid  to  support  a  conviction,  must 
comprise  certain  essential  points  in  addition  to  the  ordinary 
requisites  to  an  indictment,  and  these  essential  points  we 
shall  now  proceed  to  consider.  In  Hale's  Pleas  of  the  Crown 
is  the  following  precedent:  —  "Quod  J.  S.,  1  die  Julii,  anno, 
etc.,  in  nocte  ejusdem  diei  vi  et  armis  domum  mansionalem 
A.  B.  felonice  et  burglariter  fregit  et  intravit,  ac  ad  tunc  et 
ibidem  unum  scyphum  argenteum,  etc.,  de  bonis  et  catallis 
ejusdem  A.  B.,  in  eadem  domo  inventis  felonic^  et  burglariter 
f uratus  fuit  ccpit  et  asportavit ; "  or,  if  no  theft  were  actually 
committed,  then  "  ex  intentione  ad  bona  et  catalla  ejusdem 
A.  B.,  in  eadem  domo  existentia  felionic^  et  burglariter  furan- 
dum  capiendum  et  asportandum,  or,  ea  intentione  ad  ipsum 
A.  B.,  ibidem  felonice  interficiendum  contra  pacem,  etc."  2 
And  upon  this  precedent  he  has  the  following  remarks,  which 
he  tlivides  into  five  distinct  clauses,  each  of  them  essential  to 
the  constitution  of  an  indictment  for  burglary:  —  1.  That  it 
is  said  noctanter,  in  Ihe  night  time,  or,  nocte  ejusdem  diei, 
in  the  night  of  the  same  day,  for  if  it  be  in  the  daytime  it 
is  not  Ijurghiry.^    2.  That  it  be  said  burg-lariter,  burglariously, 

'  In  the  prcp<aration  of  this  chapter,  free  use  has  been  made  of  Wilmot's 
very  excellent  l^ige.st  of  tlie  Law  of  Burglary,  London,  1851. 

«  1  Hale,  r.  C.  54  f). 

"Lewis  r.  The  State,  IC  Connecticut,  32;  Commonwealth  v.  INfark,  4 
Leigh, '>58;  Tliom.'iH  n.  The  St^te,  5  Howard,  (Mississippi,)  20;  The  State 
f.  Wilson,  Coxe,  i'.i'J,  -MO. 


CHAP.  XIII.]  BURGLARY.  65 

for  it  is  a  legal  word  of  art,  without  which  burglary  cannot  be 
expressed  with  any  kind  of  other  word  or  circumlocution. 
And,  therefore,  where  the  indictment  is  burg-alriter,  instead  of 
biirg-lariter,  it  makes  no  indictment  for  burglary,  —  so  if  it  be 
burg-enter.  3.  It  must  he /regit  et  intravit,  broke  and  entered, 
for  it  is  held,  that  breaking  without  entering,  or  entering  with- 
out breaking,  makes  not  burglary  :  yet  (Trin.,  5  Jac,  B. 
Regis),  an  indictment  quod  felonice  et  burglariter,  /regit 
domnm  mansionalem,  etc.,  was  a  good  indictment  for  burglary, 
that  the  entry  is  sufficiently  implied,  even  in  an  indictment 
by  the  words  burglariter  /regit,  but  the  safest  and  common 
way  is  to  srj, /regit  et  intravit.^  4.  It  must  be  said  domum 
mansioncdem,  the  dwelling  or  mansion-house,  where  burglary  is 
committed,  and  not  generally  doniuin,  for  that  is  too  uncertain 
and  large.  5.  It  must  be  alleged,  that  the  prisoner  committed 
a  felony  in  the  same  house,  or  that  he  broke  and  entered  the 
house  to  the  intent  to  commit  a  felony.^  It  is  to  be  observed, 
that  Hale  does  not  make  any  mention  of  the  particular  dai/,  as 
being  essential  in  indictments  for  burglary.  And  it  is  not 
necessary  to  lay  the  precise  day  on  which  the  offence  was 
committed  ;  and  the  indictment  is  good,  even  if,  at  the  day 
laid,  no  burglary  had  actually  taken  place.^ 

The  precedent  furnished  by  Lord  Hale  does  not  specify  the 
particular  hour  of  the  night  at  which  the  burglary  took  place. 
But  elsewhere,  he  says,  "  Where  the  time  of  the  day  is  mate- 
rial to  ascertain  the  nature  of  the  offence,  it  must  be  expressed 
in  the  indictment,  as  in  an  indictment  for  burglary  it  ought  to 
say,  tali  die  circa  horam  decimum  in  nocte  ejusdem  diei  felo- 
nice et  burglariter  fregit,  yet  by  some  opinions  burglariter  car- 
ries a  sufficient  expression,  that  it  was  done  in  the  night 
time."  *  And  in  a  recent  case  it  was  held  sufficient  to  allege 
that  the  crime  was  committed  "  burglariously,"  without  stat- 


*  Fielding's -case,  Dyer,  58,  99. 
«  1  Hale,  P.  C.  549,  550. 

*  Wilmot,  Law  of  Burglary,  187,  191;  Syer's  case,  Coke,  3  Inst.  230; 
Kelyng,  16. 

*"2  Ilale,  R  C.  179. 

6* 


66  BURGLARY.  [CHAP.  XIII. 

iiig  the  time  at  which  it  was  committed,  or  that  it  was  done 
in  the  night  time.^  But  that  the  precise  hour  should,  at  all 
events,  be  mentioned,  we  have  the  authority  of  East,  founded 
on  a  case  actually  decided  on  this  point.  "  The  indictment 
must  also  not  only  state  the  fact  to  have  been  done  in  the 
night  of  such  a  day,  but  it  ought  also  to  express  at  about 
what  hour  of  the  night  it  happened ;  though  it  does  not  seem 
necessary  that  the  evidence  should  strictly  correspond  with 
the  latter  allegation.  In  Waddington's  case,  the  indictment 
for  burglary  alleged  the  fact  to  have  been  committed  in  the 
night,  but  did  not  express  at  or  about  w^hat  hour  it  was 
done.  Gould,  J.,  held  the  indictment  insufficient  as  for  a  bur- 
glary, and  directed  the  prisoner  to  be  found  guilty  of  simple 
larceny  only.  He  said,  that  as  the  rule  then  established  was, 
that  a  burglary  could  not  be  committed  during  the  twilight, 
it  was  therefore  necessary  to  specify  the  hour,  in  order  that 
the  fact  might  appear,  upon  the  face  of  the  indictment,  to 
have  been  done  between  the  twilight  of  the  evening  and  that 
of  the  morning."  ^ 

1  Regina  v.  Thompson,  2  Cox,  C.  C.  445 ;  Mundell's  Digest,  33.  The 
term  "  burglariously,"  says  Hinman,  J.,  in  Lewis  v.  The  State,  16  Connecti- 
cut, 32,  34,  "  is  understood,  in  modern  professional  language,  to  imply  that  the 
act  was  done  in  tlie  night." 

=  Waddington's  case,  2  East,  P.  C.  513;  Lewis  v.  The  State,  16  Connecti- 
cut, 32.  In  an  early  case  in  Vermont,  it  was  said,  that  in  cases  of  burglary 
the  hour  when  the  olTence  is  committed  must  be  set  forth.  The  State  v. 
G.  S.,  2  Tyler,  195,  300,  (1802).  In  ]\Iassachusetts,  it  has  been  recently 
held,  in  the  case  of  Commonwealth  v.  Williams,  2  Cushing,  582,  (1849,)  that 
since  the  passing  of  St.  1847,  ch.  13,  defining  "  the  time  of  night  time  in  crim- 
inal j)rosecutions,"  it  is  sullicicnt  to  allege,  generally,  that  an  oifence  was  com- 
mitted in  the  night  time,  ■without  designating  the  jKirticular  hour  of  the  night; 
and  by  such  allegation  is  to  be  understood  the  period  of  night  time  as  defined 
in  that  statute.  In  this  case,  Dcwej',  J.,  said,  "  The  allegation  in  the  indict- 
ment is,  that  the  defendant  broke  and  entered  the  city  hall  on  the  twelfth 
day  of  November,  184  7,  'in  the  night  time  of  said  day.'  It  has  been  con- 
sidered proper  and  necessary,  until  the  statute  of  1817,  ch.  13,  and  such  are 
the  usual  j)recedents,  \i>  ^lalr  some  jiarlicular  li<nir  nC  ihe  night  in  which  the 
burglary  was  allcgt^d  to  have  l)('cn  cnuniiiltcd.  'I'lic  i-cisou  for  this  seems  to 
have  been,  that  one  might,  wiih  a  rcloniDus  iiitciit,  lia\c  lnokcn  and  entered 
a  buililing,  at  a  time  pi-upcrly  rallrd,  in   jtopular  language,  nl^ht  time,  and 


CHAP.  XIII.]  BURGLARY.  '  67 

With  regard  to  the  second  essential  qualification  in  an 
indictment  for  burglary,  as  above  laid  down  by  Hale,  in  the 
first  place,  every  indictment  for  felony  must  allege  the  fact  to 
have  been  done  fclonice,  feloniously.^  And,  without  the  inser- 
tion of  such  word,  an  indictment  for  burglary  would  fail ;  nor 
is  the  word  "feloniously"  sufficient,  unless  the  word  "burgla- 
riously" be  added.  For  it  is  a  legal  word  of  art,  without 
w'hich  burglary  cannot  be  expressed  with  any  kind  of  other 
word,  or  other  circumlocution.-  But  in  Massachusetts,  it  has 
been  recently  decided,  that  the  statute  definition  of  house- 
breaking has  done  away  with  the  common  law  requisitions  of 
the  offence,  so  that  burglariter  no  longer  makes  a  part  of  the 
quo  modo  of  the  crime.^     But  if  the  word  "  burglariously  "  in 

yet  not  have  committed  the  crime  of  burglary  ;  the  time  in  which  that 
ofl'ence  can  be  committed  being  not  so  far  extended  as  to  embrace  the  night 
time,  in  the  ordinary  use  of  that  word,  but  a  period  when  the  light  of  day 
had  so  far  disappeared,  that  the  face  of  a  person  was  not  discernible  by  the 
light  of  the  sun  or  twilight.  But  the  statute  just  cited  has  defined  '  night 
time 'for  all  purposes  of  criminal  proceedings.  Wherever  'night  time'  is 
now  used  in  an  indictment,  as  descriptive  of  the  time  of  the  commission  of 
the  offence,  it  is  to  be  understood  of  the  night  time  as  defined  by  this  statute. 
The  allegation,  that  the  breaking  and  entering  M'ere  in  that  night  time,  is  vir- 
tually an  allegation  that  the  offence  was  committed  during  the  time  between 
one  hour  after  sunsetting  on  one  day,  and  one  hour  before '  sunrising  on  the 
next  day."  In  New  Hampshire,  it  has  been  decided,  that  night  time  con- 
sists of  the  period  from  the  termination  of  daylight  in  the  evening,  to  the 
earliest  dawn  of  the  next  morning.  The  State  i'.  Bancroft,  10  New  Hamp- 
shire, 105.  And  so  in  two  early  cases  in  INIassachusetts.  Commonwealth  v. 
Chevalier,  7  Dane's  Abridgment,  134,  (1794);  Commonwealth  v.  Steward, 
7  Dane's  Abridgment,  136,  (1789). 

1  2  Hale,  P.  C.  184. 

=  1  Hale,  P.  C.  550;  2  East,  P.  C.  512;  Long's  case,  5  Coke,  Rep.  121  ; 
Brooke's  case,  4  Coke,  Hep.  39;  same  case  alluded  to  by  Crompton, 
foh  34. 

^  Tully  V.  The  Commonwealth,  4  Metcalf,  357,  (1842).  "We  call  this 
decision  an  important  one,"  says  George  Bemis,  Esq.,  in  an  interesting 
article  in  the  Law  Reporter,  January,  1847,  p.  387,  "  because  in  connection 
with  a  class  of  cases  which  have  begun  to  form  a  line  of  precedents  in  the 
Massachusetts  courts,  Josslyn  v.  The  Commonwealth,  6  Metcalf,  23G  ;  Devoe 
r.  The  Commonwealth,  3  Metcalf,  31(5 ;  Commonwealth  v.  Squire,  1  Metcalf, 
258,  the  old   landmarks  are  fast  vanishing   in  the  jurisj^rudence   of  that 


68  BURGLARY.  [CHAP.  XIII. 

the  indictment  were  merely  misspelt,  and  were  idem  sonans, 
as  if  it  were  burglariously  instead  of  burglariously,  such  error 
would  not  vitiate  the  indictment.^ 

With  regard  to  the  third  point  mentioned  by  Lord  Hale, 
the  words  freg-it  et  inlravit,  —  Anglice,  broke  and  entered,  are 
both  necessary  to  support  an  indictment  for  burglary,  for,  as 
has  already  been  seen,  the  breaking  without  the  entry,  and 
the  entry  without  the  breaking,  are  insufficient.^ 

With  regard  to  the  fourth  point,  it  is  said  in  Hawkins's 
Pleas  of  the  Crown,  the  word  house  would  be  insufficient  to 
support  an  indictment  for  burglary.^  But  Hawkins  says,  in 
a  subsequent  part  of  the  same  section,  "  Staundforde  and 
Anderson  mentioned  precedents  of  indictments  of  burglary  in 
domo,  without  adding  mansionali ;  however,  the  constant 
course  of  late  precedents  and  opinions  make  it  certainly  a 
very  dangerous,  if  not  an  incurable  fault,  to  omit  the  word 
mansionalis  in  .an  indictment  of  burglary  in  a  house,  and 
therefore,  without  question,  it  ought  always  to  be  inserted 
where  the  truth  of  the  case  will  bear  it."  The  term  "  mansion- 
house,"  donms  mansionalis,  used  by  Hale,  has  grown  into  dis- 
use, and  the  word  diuelling-house  is  now  generally  used.  But 
the  words  "  mansion-house  "  sufficiently  describe  a  dwelling- 
house.^ 

The  name  of  the  owner  of  the  dwelling-house  must  be 
stated  with  accuracy.^   "  In  all  cases  of  this  description,"  says 

respectable  ComnionweaUli,  before  tlie  supposed  efficacy  of  statute  phrase- 
ology,—  phraseology,  too,  which  has  liardly  changed  a  whit  ft)r  the  last  half 
century,  and  under  which  common  law  teclinicalities  have  hitherto  been 
deemed  indispensable."  See  also  an  article  by  the  same  gentleman  in  The 
Monthly  Law  Reporter,  n.  S.  vol.  6,  p.  190. 

'  AV^ilmot,  Law  of  Burglary,  194.  And  see  Williams  v.  Ogle,  2  Strange, 
889;  Rex  v.  Shakspeare,  10  I'^ast,  83;  Arclibold,  Crim.  PI.  (London  ed. 
185.'i),  174. 

*  Wilmot,  Law  of  Burglary,  lO.').  See  Rex  c.  Compton,  7  Carrington  & 
Payne,  l.'i9. 

'  1  Hawkins,  J'.  C.  ch.  30,  §  10. 

*  Conmion wealth  v.  I'ennnik,  3  Sergeant  &  Rawle,  199. 

'  Rex  V.  WhiU-,  1  Leach,  C.  C.  (4th  Loudon  ed.),  2.'i'2  ;  2  East,  R  C.513; 
"Woodward's  case,  1  J.,cacli,  C.  C.  (Ith  Loudon  ed.),  2.'J3,  note;  Cole's  case, 


CHAP.  XIII.]  BURGLARY.  69 

Archbold,  "  if  there  be  any  the  slightest  doubt  whether  the 
house  broken  and  entered  should  be  described  as  the  dwell- 
ing-house of^  A.,  B,j  or  C,  the  pleader  should  obviate  the  dif- 
ficulty by  inserting  counts  alleging  it  to  be  the  dwelling- 
house  of  A.,  B.,  and  C,  respectively."  ^ 

Burglary  may  be  committed  in  a  church,  at  common  law.^ 
An  indictment  for  burglary  in  a  church  need  not  lay  the 
offence  as  committed  in  a  dwelling-house.  "  An  indictment," 
says  Hale,  "  quod  felonice  et  burglariter  fregit  et  intravit  eccle- 
siam  parochialem  de  D.  eS,  intentione,  is  a  good  indictment, 
for  ecclesia  is  domus  mansionalis."  *     But  it  is  not  necessary 


Moor,  466  ;  2  East,  P.  C.  513.  It  is  sufficient  to  lay  the  ownership  of  the 
house  in  a  married  woman  who  hves  apart  from  her  husband,  and  has  the 
occupancy  and  control  of  the  dwelling.     Ducher  v.  The  State,  18  Ohio,  308. 

*  The  word  "  of"  sufficiently  alleges  the  ownership  of  the  property.  Com- 
monwealth V.  Williams,  2  Gushing,  582.  "  The  indictment  charges,"  said 
Dewey,  J.,  in  this  case,  "  that  the  defendants  broke  and  entered  the  city 
hall  of  the  city  of  Charlestown.  The  objection  is,  that  there  is  no  averment 
of  property  in  the  city  of  Charlestown.  To  sustain  the  objection,  reference 
was  made  by  the  counsel  for  the  defendants  to  the  forms  of  indictments  for 
larcenies,  and  for  other  criminal  ofi'ences  affecting  personal  property.  If 
these  were  proper  tests,  the  averment  in  this  indictment  would  be  found  to 
be  defective.  The  ownership  of  personal  chattels  is  stated  more  fully;  the 
usual  form  being,  that  they  are  '  the  goods  and  chattels  of  A.  B.'  But  a 
reference  to  the  best  books  of  precedents  in  criminal  pleading  will  fully  sus-* 
tain  the  distinction  between  the  modes  of  describing  real  and  personal  prop- 
erty, in  reference  to  the  ownership  of  such  property.  While  the  latter  is 
described  as  has  been  stated,  a  very  general,  if  not  universal  mode  of  describ- 
ing the  ownership  of  real  estate,  is  similar  to  that  adopted  in  the  present 
case.  This  is  peculiarly  so  in  inclictnients  for  arson,  burglary,  ami  malicious 
mischief.  This  was  the  form  of  indictment  in  the  case  of  Commonwealth  v. 
Taylor,  5  Binney,  277,  for  breaking  and  entering  a  house;  and  in  the  cases 
of  Commonwealth  v.  Squire,  1  Metcalf,  258,  and  Commonwealth  v.  Harney, 
10  Metcalf,  422,  for  malicious  burning  of  buildings.  The  present  indictment 
does  sufficiently  allege  the  ownership  of  the  property,  and  that  it  was  a  pub- 
lic building." 

-  Archbold,  Crim.  PI.  (Am.  ed.  1846),  364. 

*  Regina  v.  Baker,  3  Cox,  C.  C.  581,  (1849).  In  this  case,  Alderson,  B., 
said,  "  I  take  it  to  be  settled  law  that  burglary  may  be  committed  in  a  church, 
at  common  law.     I  so  held  lately,  on  circuit." 

*  1  Hale,  P.  C.  556. 


70 


BURGLARY. 


[chap.  XIII. 


to  say,  that  a  church  is  a  mansion-house,  for  a  burglary  in  a 
church  is  a  distinct  burglary  of  itself.  And  Coke  says,  "  They 
be  burglars  which  break  any  house  07'  church  in  the  night, 
although  they  take  away  nothing."  ^  In  the  case,  therefore,  of 
a  burglary  in  a  church,  the  indictment  should  charge  that 
the  defendant  feloniously  and  burglariously  broke  and  entered 
the  parish  church  of  the  parish  to  which  it  belongs,  with 
intent,  etc.,  according  to  the  circumstances  of  the  case.^  In 
some  of  the  United  States,  the  offence  is  now  provided  by 
statute,  which  makes  it  a  distinct  felony  to  break  and  enter 
any  church  or  chapel,  and  steal  any  chattel  therein.  But  in  a 
very  recent  English  case,  Alderson,  B.,  ruled  that  the  acts  of 
Parliament  which  particularly  relate  to  offences  respecting 
churches,  do  not  destroy  the  offence  at  common  law.^ 

Where  an  outhouse  having  the  same  protection  as  the 
dwelling-liouse,  has  been  broken  into,  the  offence  may  either 
be  laid  to  have  been  committed  in  the  dwelling-house,  or  in 
the  building  parcel  thereof."* 

The  place  in  which  the  dwelling-house  where  the  burglary 
has  been  committed  must  be  stated  in  the  indictment,  and 
proved  as  laid ;  a  variance  is  fatal.^  But  it  has  been  held, 
that  if  it  be  not  expressly  stated  where  the  dwelling-house  is 
situated,  it  shall  be  taken  to  be  situated  at  the  place  named 
in  the  indictment  by  way  of  special  venue.^  It  is  sufficient 
to  allege  that  the  burglary  was  committed  at  a.  place  named, 
as  "  at  N.  in  the  county  aforesaid,"  without  stating  it  to  be  a 
parish,  vill,  or  the  like."    Where  an  indictment  alleges  a  dwell- 


>  Coke,  3  Inst.  05. 

2  2  East,  P.  C.  .512;  Wilniot,  Law  of  Burglary,  198.  Sec  also  1  Hawkins, 
r.  C.  eh.  38,  §  1 0. 

"  Regina  v.  IJakcr,  3  Cox,  C.  C.  581,  (184D). 

*  Hex  V.  CarlaiKJ,  2  ICast,  J'.  C.  4i)3.  In  Dobbs's  case,  2  East,  P.  C.  the 
prisonc-r  was  inilirlcd  for  l)iir^f|;ir}'  in  tlu-,  stable  of.T.  Vt.,  part  of  his  dwulliiig- 
house. 

'  2  Starkie,  Crim.  I'l.  (Lon.lr.M  <m|.  1«28,)  437,  note  (z). 

•  Ilex  V.  Nai)pcr,  1  Moody,  C.  C.  111. 

'  Rcgina  v.  Brookes,  Carrington  &  Marslmian,  544.  Sec  Wood's  case,  2 
Lcwin,  C.  C.  30. 


CHAP.  XIII.]  BUKGLARY.  71 

ing-housc  to  be  situate  "  at  the  parish  aforesaid,"  the  parish 
last  mentioned  must  be  intended.^  Where  a  dwelling-house 
is  partly  in  one  parish  and  partly  in  another,  it  has  been  held 
correct  to  lay  the  offence  as  committed  in  that  parish  in 
which  lies  the  part  of  the  house  so  broken  into.^  In  all  cases 
where  any  difficulty  is  likely  to  arise  respecting  the  local  de- 
scription of  the  dwelling-house,  different  counts  should  be 
inserted  in  the  indictment,  varying  it  according  to  the  circum- 
stances. 

The  allegation  of  place,  as  of  time,  must  be  repeated  in  the 
averment  of  every  distinct  material,  fact.  But  after  the  place 
has  been  once  stated  with  certainty,  it  is  sufficient  afterwards, 
in  subsequent  allegations,  to  refer  to  it  by  the  words  "there," 
or  "  there  situate,"  {ibidem,  in  ancient  indictments,)  and  the 
effect  of  these  words  is  equivalent  to  an  actual  repetition  of 
the  place.-^  It  is  however  usual,  in  modern  practice,  to  repeat 
the  words,  "  in  the  said  dwelling-house,"  or,  "  in  the  said 
dwelling-house  then  being,"  and  "  at  B.  aforesaid,  in  the 
county  aforesaid."* 


^  Rex  V.  Richards,  1  Moody  &  Robinson,  177. 

'Rex  V.  Howell,  1  Cox,  C.  C.  190;  Regina  v.  Brookes,  Carrington  & 
Marsbman,  543.  See  Rex  v.  Bennett,  Russell  &  Ryan,  C.  C.  289.  In  the  case 
of  Rex  V.  Bullock,  1  Moody,  C.  C.  324,  note,  which  was  an  indictment  for 
breaking  into  a  house  and  stealing  goods,  the  house  was  laid  to  be  in  the 
parish  of  Saint  Botolph,  Aldgate,  and  it  was  proved  that  the  parish  was 
Saint  Botolph,  tvilJiout  Aldgate.  The  judge  who  tried  the  case  directed  an 
acquittal  of  the  capital  part  of  the  charge,  but  allowed  a  verdict  of  guilty  of 
the  larceny.  But  upon  a  case  reserved,  it  was  held,  that  as  there  was  no 
negative  evidence  of  there  not  being  such  a  parish  as  Saint  Botolph,  Aid- 
gate,  the  conviction  was  right.  Where  an  indictment  alleged  that  a  burglary 
was  committed  "  at  the  parish  of  Woolwich,"  and  the  prosecutor  proved  that 
the  correct  name  of  the  parish  was  "  Saint  Mary,  Woolwich,"  but  the  parish 
is  called  the  parish  of  Woolwich  in  an  act  of  Parliament,  It  was  held,  that  as 
the  act  showed  that  the  parish  was  known  by  the  name  of  the  parish  of  Wool- 
wich, the  indictment  was  sufficient.  Regina  v.  St.  John,  9  Carrington  & 
Payne,  40. 

^  1  Starkle,  Crim.  PI.  (London  ed.  1828),  58;  2  Gabbett,  Crim.  Law,  223, 
224 ;  The  State  v.  Cotton,  4  Foster,  143. 

*  An  indictment,  after  charging  the  prisoner  with  breaking  and  entering 


72  BURGLARY.  [CHAP.  XIII. 

The  fifth  qualification  given  us  by  Lord  Hale  as  essential 
to  support  an  indictment  for  burglary,  is  as  follows  :  —  "It  must 
be  alleged  that  the  prisoner  committed  a  felony  in  the  same 
house,  or  that  he  broke  and  entered  the  house  to  the  intent  to 
commit  a  felony."  ^  Here  there  are  two  allegations,  either  of 
which  is  sufficient  to  support  an  indictment  for  burglary,  for 
we  may  either  say  that  the  prisoner  burglariously  broke  and 
entered  with  the  intent  to  commit  felony,  or  if  the  evidence 
can  support  the  charge  of  felony  actually  committed,  it  may 
be  alleged  that  the  prisoner  actually  committed  the  felony, 
without  laying  the  intent,.for  the  intent  may  be  inferred  from 
the  facts  of  the  case.^  "  The  commission  of  felony,"  Lord 
Hale  observes,  "  is  sufficient  evidence  of  the  intention."  ^ 

It  is  here  to  be  remarked,  that  the  proof  of  a  breaking  and 
entering  in  the  night,  with  intent  to  steal,  will  not  support 
an  indictment  for  burglariously  breaking,  etc.,  and  stealing 
goods ;  though  the  converse  of  this  proposition  is  not  true ; 
the  actual  commission  of  the  larceny  comprehended  in  this 
latter  charge,  being  evidence  of  the  entering  with  intent  to 

tlie  house  in  the  usual  form,  cliarged  that  he,  forty-two  pieces  of  the  current 
gold  coin  of  this  reahu,  called  sovereigns,  etc.,  in  the  same  dwelling-house 
then  and  there  being  found,  then  and  there  feloniously  did  steal,  take,  and 
carry  away,  etc.  It  was  objected  that  the  woi-ds  "then  and  there"  were 
insufHcient,  and  there  ouglit  to  have  been  added  to  them,  "  in  the  same 
dwelling-house."  But  Coleridge,  J.,  after  referring  to  the  case  of  Regina  v. 
Smith,  2  Moody  &  llobinson,  115,  (1838,)  where  Patteson,  J.,  held  a  similar 
objection  valid,  said,  "  I  had  occasion  to  mention  that  case  to  my  Brother 
Patteson,  and  he  seemed  to  think  the  decision  Avas  incorrect.  I  think  the 
present  indictment  is  sufTicieut."  Regina  v.  Andrews,  Carrington  &  Marsh- 
man,  121,(1841).  See  Regina  v.  "Watkins,  Carrington  &  Marshman,  264; 
Regina  v.  Page,  9  Carrington  &  Payne,  75G. 

*  1  Hale,  P.  C.  550.  The  breaking  and  entering  a  dwelling-house  in  the 
night  time  is  not  burglary,  unless  it  be  done  with  intent  to  commit  a  felony. 
Therefore,  the  breaking  and  entering  a  dwelling-house,  with  intent  to  cut  off 
an  ear  of  an  inhabitant,  is  not  a  felony;  Connnonwealth  v.  Xewell,  7  Mass. 
245  ;  nor  a  breaking  and  entering  with  intent  to  commit  adultery.  The 
State  »•.  Cooper,  16  Vermont,  551. 

-  Wilmot,  Law  of  Burglary,  212. 

'  Hex  r.  Locost,  1  Hale,  P.  C.  5C0 ;  Kclyng,  30;  Commonwealth  v.  Hope, 
22  Pickering,  1,  5. 


CHAP.  XIII.]  BURGLAKY.  73 

commit  it.  In  all  cases  where  an  actual  felony  has  been 
committed,  it  is  sufficient  to  allege  the  commission  thereof; 
but  it  is  the  better  course  first  to  lay  the  intent,  and  then  to 
state  the  particular  felony  which  has  been  in  fact  committed. 
This  was  Lord  Hale's  advice;  and  it  has  been  sanctioned  in 
the  case  of  Rex  v.  Furnival,  where  a  doubt  occurred  to  the 
judge  who  tried  the  prisoner,  whether  the  omission  of  the 
words  "  with  intent  to  steal  "  would  not  vitiate  the  indict- 
ment, which  charged  the  prisoner  only  with  burglariously 
breaking  and  entering  the  dwelling-house  of  one  T.  !EI.,  and 
then  and  there  feloniously  and  burglariously  stealing  goods 
therein.  But  upon  a  case  reserved,  the  judges  were  of  opin- 
ion, that  on  an  indictment  like  this,  the  prisoner  might  well 
be  convicted  of  burglary,  if  the  larceny  was  proved ;  other- 
wise, if  not.  The  reason  of  which  appears  to  be,  that  where 
the  indictment  is  confined  to  charging  the  burglary  and  fel- 
ony, omitting  the  intent,  etc.,  then  if  the  prisoner  is  acquitted 
of  the  felony,  the  indictment  stands  single,  as  a  charge  of 
burglary,  (or  of  burglariously  and  feloniously  breaking  and 
entering  a  dwelling-house  in  the  night,)  and  therefore  defec- 
tive, because  it  "svants  the  direct  allegation  of  the  intent  to 
commit  a  particular  felony ;  which  intent  is  a  necessary 
ingredient  to  complete  the  offence  of  burglary.-^ 

In  Massachusetts  it  has  been  held,  that  the  charge  of  break- 
ing and  entering  a  house,  and  actually  stealing  therefrom, 
though  in  effect  charging  two  distinct  offences,  was  to  be 
punished  only  as  one  offence,  of  breaking  and  entering  with 
an  intent  to  steal.^  "  That  case,"  says  Chief-Justice  Shaw, 
"  was  decided  on  the  ground,  that  where  breaking  and  enter- 
ing are  averred,  and  an  actual  stealing  at  the  same  time,  all 
charged  in  one  count,  the  charge  of  stealing  is  substituted  for 
an  averment  of  an  intent  to  steal ;  a  mode  of  charging  which 


^  Rex  V.  Furnival,  Russell  &  Ryan,  C.  C.  445 ;  Commonwealth  v.  Brown, 
3  Rawle,  207;  Jones  v.  The  State,  11  New  Hampshire,  269;  The  State  r. 
Aver,  3  Foster,  301,  318;  1  Gabbett,  Crim.  Law,  194. 

'  Commonwealth  v.  Hope,  22  Pickering,  1  ;  Commonwealth  v.  Tuck,  20 
Pickering,  356;  Devoe  i-.  The  Commonwealth,  3  Metcalf,  316. 

7 


74  BURGLARY.  [CEAP.  XIII. 

is  warranted  by  the  precedents  there  cited.  We  think  the 
distinction  to  be  this  ;  that  where  the  breaking  and  entering 
and  actual  stealing,  are  charged  in  one  count,  there  is  but  one 
offence  charged,  and  there  can  be  but  one  penalty  adjudged. 
But  where  they  are  averred  in  distinct  counts,  as  distinct  sub- 
stantive offences,  not  alleged  to  have  been  committed  at  the 
same  time,  and  as  one  continued  act ;  if,  in  other  respects, 
they  are  such  offences  as  may  be  joined  in  the  same  indict- 
ment, the  defendant  may  be  convicted  on  both,  and  a  judg- 
ment rendered,  founded  on  both."  ^ 

With  regard  to  the  first  allegation  above  mentioned,  by 
Lord  Hale,  where  the  indictment  lays  the  actual  commission 
of  felony,  without  laying  the  intent,  the  actual  commission  of 
felony  must  be  proved.  Where  one  was  indicted  for  burglary 
and  stealing,  and  it  appeared  that  there  were  no  goods  stolen, 
but  a  burglary  with  intent  to  steal,  and  not  being  so  laid,  as 
it  ought  to  have  been,  the  prisoner  was  acquitted.^  So,  also, 
if  an  indictment  for  btnglary  charge  an  actual  rape,  evidence 
of  an  assault,  with  intent  to  ravish,  will  not  support  it.^ 

Where  an  indictment  for  burglary  charges  an  actual  steal- 
ing of  goods,  the  owner  of  such  goods  must  be  correctly 
named.*  Where  the  indictment  was  for  breaking  and  enter- 
ing, etc.,  the  house  of  J.  Davis,  with  intent  to  steal  the  goods 
of  J.  Wakelin,  and  there  was  no  such  person  who  had  goods 
in  the  house ;  but  J.  Wakelin  was  put,  by  mistake,  for  J. 
Davis,  the  prisoner  was  entitled  to  an  acquittal,  and  it  was 
ruled  that  the  words  "J.  Wakelin"  could  not  be  rejected  as 
surplusage,  for  flie  words  were  sensible  and  material,  it  being 
material  to  kuj  truly  the  properly  in  the  g-oods,  and  ivithout  such 


*  Josslyn  V.  Thu  Conimoiiwoalth,  6  Metcalf,  236,  238 ;  Larncd  v.  The 
Comnioriweallh,  12  Metcalf,  240,  214  ;  Crowley  v.  The  Commonwealth,  11 
Metcalf,  575;  Kite  v.  Tiie  Commonwealth,  11  Metcalf,  581.  So  also,  in 
New  Hampshire,  The  State  v.  Ayer,  3  Foster,  301,  318;  The  State  v. 
Moore,  12  Nc-w  Hampshire,  42;  The  State  v.  Squires,  11  New  Hampshire, 
37  ;  .ToncH  r.  The  State,  11  New  Hampshire,  2C9. 

«  2  Ka8t,  F.  C.  514. 

'  WiiiTiot,  ]>aw  of  Hurplary,  214. 

*  Jones  and  IJever's  case,  Kelyng,  52. 


CHAP.  XIII.]  BUEGLARY.  75 

ivords  the  description  of  the  offence  vmuld  he  incomjihte?-  But 
it  appears  that  if  the  name  of  the  goods  has  once  been  cor- 
rectly stated  in  the  indictment,  an  error  in  the  subsequent 
part  will  not  vitiate  it.^  A  bailee  may  have  such  property  in 
goods  as  to  be  considered  the  owner  of  them,  if  an  indict- 
ment for  burglary  with  intent  to  steal  the  goods,  or  an  indict- 
ment alleging  the  actual  stealing  of  them,  lay  the  ownership 
in  him.2 

An  indictment  for  burglary  may  allege  an  intent  to  commit 
felony,  without  alleging  an  actual  felony  committed.  But  in 
this  case,  care  must  be  taken  that  the  actual  felony  done  cor- 
respond with  the  felony  laid,  as  intended  to  be  done,  other- 
wise the  indictment  will  be  bad.*  But  if  in  committing  the 
felony  laid  in  the  indictment  as  intended  to  be  committed,  a 
person  commit  another  felony,  which  results  from,  or  is  neces- 
sarily connected  with,  the  felony  intended,  this  will  not  vitiate 
the  indictment.  For  it  is  a  general  rule,  that  a  man  who 
commits  one  sort  of  felony,  in  attempting  to  commit  another, 
cannot  excuse  himself  upon  the  ground  that  he  did  not  intend 
the  commission  of  that  particular  offence.  Yet  this,  it  seems, 
must  be  confined  to  cases  where  the  offence  intended  is  itself 
a  felony.^ 

It  may  sometimes  become  expedient,  from  the  particular 
circumstances  of  the  case,  that  different  intents  should  be 

*  Rex  1'.  Jenks,  2  Leach,  C.  C.  (4th  London  ed.),  774 ;  2  East,  P.  C.  514. 

*  Wilmot,  Law  of  Burglary,  214.  And  see  Regina  v.  Rudge,  1  Russell, 
Crim.  Law,  825,  note  by  Greaves;  Rex  v.  Exminster,  6  Adolphus  &  Ellis, 
598. 

8  Regina  v.  Bird,  9  Carrlngton  &  Payne,  44 ;  The  State  v.  Ayer,  3  Foster, 
301.  An  indictment  under  the  St.  7  &  8  Geo.  4,  ch.  29,  §  11,  for  breaking 
out  of  a  dwelling-house,  having  committed  felony  therein,  must,  if  the  felony 
be  in  having  stolen  goods,  allege  the  ownership  of  them  exactly  as  in  an 
indictment  for  burglary  at  common  law,  and  such  allegation  must  be  proved 
as  laid.  Wilmot,  Law  of  Burglary,  217.  So,  also,  an  indictment  for  bur- 
glary with  violence,  must  state  the  person  against  whom  violence  has  been 
proved,  and  the  proof  must  correspond  with  the  allegation.  Regina  v.  Par- 
fitt,  8  Carrington  &  Payne,  288. 

*  1  Hale,  P.  C.  561  ;'2  East,  P.  C.  514. 

*  Wilmot,  Law  of  Burglary,  219  ;  2  East,  P.  C.  514. 


76  BURGLARY.  [CHAP.  XIII. 

stated  ill  the  indictment.^  It  has  been  held,  by  two  learned 
judges,  that  where  an  indictment  charges  a  burglarious  break- 
ing and  entering  a  dwelling-house,  with  intent  to  steal,  it 
need  not  be  particularly  stated  whose  goods  they  are  which 
the  indictment  charges  the  intent  to  steal.^ 

When  the  indictment  charges  an  intent  to  steal,  it  is  not 
necessary  to  prove  an  actual  stealing.  "  If  a  man,"  says  Hale, 
"  breaks  and  enters  a  house  with  the  intent  to  commit  a  fel- 
ony, though  he  attains  not  that  intent,  but  takes  or  steals 
nothing,  this  is  burglary."  ^  And  Coke,  in  his  definition  of 
burglary,  expressly  says,  "  whether  his  felonious  purpose  be 
executed  or  not."  * 


1.  Indictment  for  hurglarij  and  larceny.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  about  the  hour  of  eleven  of  the 

clock  in  the  night  of  the  same  day,  with  force  and  arms,  at  B. 
aforesaid,  in  the  county  aforesaid,  the  dwelling-house  of  E.  F. 
there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  the  goods  and  chattels  ^  in  the  same  dwell- 
ing-house then  and  there  being,  feloniously  and  burglariously 
to  steal,  take,  and  carry  away,  and  then  and  there,  with  force 

*  Rex  V.  Thompson,  2  East,  P.  C.  515. 

*  Regina  v.  Clarke,  1  Carrington  &  Kirwaii,  421.  See  also  Regina  v. 
Lawes,  1  Carrington  &  Kirvvan,  82. 

»  1  Hale,  P.  C.  562  ;  Dyer,  99  ;  Staiuulforde,  P.  C.  30. 

*  Coke,  3  Inst.  63. 

*  This  and  tlie  nine  following  precedents  are  taken  from  Wihnot's  Digest 
of  the  Law  of  ]'.urglary,  237,  248. 

*  The  prisoner  was  indi<'ted  for  having  liurglarionsly  broken  and  entered 
the  liouse  of  the  proseentur  in  tlic  ni;:lit  time,  with  intent  to  steal  the 
"goods  and  chattels"  tlierein.  The  jury  found  that  lie  broke  and  entered 
■witli  intent  to  steal  mortgage  deeds.  It  was  lield,  that  being  subsisting 
seeurities  for  the  payment  of  money,  mortgage  deeds  are  chosts  hi.  action, 
amJ  as  such  wcrt;  improperly  ilescribed  as  goods  and  chattels.  Regin.a  v. 
Powell,  2  J)enisoii,  C.  C.  403;  5  Cox,  C.  V,.  396  ;  M  Kng.  Law  and  Eq. 
Reps.  515. 


CHAP.  XIII.]  BURGLARY.  77 

and  arras,  one  tea-pot,  of  the  value  of  ten  dollars,  one  sugar 
basin,  of  the  value  offifteen  dollars,  and  six  teaspoons,  of  the 
value  of  two  dollars  each,  of  the  goods  and  chattels  of  one 
J.  N.,  in  the  same  dwelling-house  then  and  there  being  found, 
then  and  there  in  the  same  dwelling-house  feloniously  and 
burglariously  did  steal,  take,  and  carry  away  ;  against  the 
peace,  etc.,  and  contrary  to  the  form  of  the  statute,  etc. 


2.  For  burglary,  by  breaking^  out  of  a  house. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.^late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  about  the  hour  of  eleven  of  the  clock  in 

the  night  of  the  same  day,  with  force  and  arms,  at  B.  aforesaid, 
in  the  county  aforesaid,  being  in  the  dwelling-house  of  E.  F. 
there  situate,  one  watch,  of  the  value  of  one  hundred  dollars, 
six  table-spoons,  of  the  value  of  four  dollars  each,  and  twelve 
teaspoons,  'of  the  value  of  two  dollars  each,  of  the  goods  and 
chattels  of  one  J.  N.,  in  the  same  dwelling-house  then  and 
there  being  found,  then  and  there  feloniously  did  steal,  take, 
and  carry  away.  And  that  the  said  C.  D.  being  so  as  afore- 
said, in  the  said  dwelling-house,  and  having  so  cgmmitted 
the  felony  aforesaid,  in  manner  and  form  aforesaid,  therein 
afterwards,  to  wit,  about  the  hour  of  twelve  of  the  clock  in 
the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  feloniously  and  burglariously 
did  break  out  of  the  same  dwelling-house.  And  the  same 
goods  and  chattels  then  and  there  feloniously  and  burglari- 
ously did  steal,  take,  and  carry  away ;  contrary  to  the  form 
of  the  statute,  etc.,  and  against  the  peace,  etc. 

3.  For  burglary  and  larceny  and  assault,  with  intent  to  murder. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  about  the  hour  of  ten  of  the  clock  in 

the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  J.  N. 

7* 


78  BURGLARY.  [CHAP.  XIII. 

there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  the  goods  and  chattels  of  one  R.  O.,  in  the 
said  dwelling-house  then  and  there  being,  then  and  there 
feloniously  and  burglariously  to  steal,  take,  and  carry  away, 
and  then  and  there  in  the  said  dwelling-house,  two  candle- 
sticks, of  the  value  of  three  dollars  each,  one  silver  tankard,  of 
the  value  of  fifty  dollars,  and  one  silver  pitcher,  of  the  value 
of  one  hundred  dollars,  of  the  goods  and  chattels  of  the  said 
R.  O.,  in  the  said  dwelling-house  then  and  there  being  found, 
then  and  there  feloniously  and  burglariously  did  steal,  take, 
and  carry  away.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  J.  S.,  then  and 
there,  in  the  said  dwelling-house  then  being,  upon  the  day 
and  at  the  hour  aforesaid,  in  and  upon  the  said  J.  N.,  in  the 
said  dwelling-house  then  and  there  being,  unlawfully,  mali- 
ciously, and  feloniously  did  make  an  assault,  with  intent 
the  said  J.  N.  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  to  kill  and  murder;  against  the 
peace,  etc.,  and  contrary  to  the  form  of  the  statute  in  such 
case,  etc. 

•  4.  For  burglary,  ivith  violence. 

The  jurors,  etc.,  iipon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  about  the  hour  of  eleven  of  the 

clock  in  the  night  of  the  same  day,  with  force  and  arms,  at 

B.  aforesaid,  in  the  county  aforesaid,  the  dwelling-house  of 
one  J.  N.  there  situate,  feloniously  and  burglariously  did  break 
and  enter,  with  intent  to  commit  felony,  and  that  the  said 

C.  D.  in  the  said  dwelling-house  then  being,  in  and  upon  the 
said  J.  N.,  in  the  said  dv^^clling-house  then  being,  then  and 
there  unlawfully,  maliciously,  and  feloniously  did  make  an 
assault,  and  tlie  said  .1.  N.,  in  and  upon  the  right  thigh  of  the 
said  .1.  \.  then  ;iiid  there  unhiwriilly,  iiinliciously,  and  feloni- 
ously did  slid),  ciil,  ami  wound,'  willi   inient  to  do  unto  the 


'  It  18  not  necessary  to  state  tlic  instrument  or  means  by  ■which  the  injury 
•was  inflicteil.     Ilex  r.  r>rig;,'s,  1  M(;0(ly,  C.  C.  318. 


CHAP.  Xlir.]  BURGLARY.  79 

said  J.  N.  some  grievous  bodily  harm;^  contrary  to  the  form 
of  the  statute  in  such  cases  made  and  provided,  and  against 
the  peace,  etc. 


5.  For  burglary  and  rape? 

The  jurors,  etc.,  upon  their  oath  present,  that  John  Bell, 
late  of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of 

June  in  the  year  of  our  Lord ,  about  the  hour  of  twelve 

of  the  clock  in  the  night  of  the  same  day,  with  force  and 
arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  dwelling- 
house  of  one  Edward  Styles  there  situate,  feloniously  and 
burglariously  did  break  and  enter,  with  intent  to  commit  fel- 
ony, and  then  and  there  upon  one  Lucy  Styles,  the  wife  of 
the  said  Edward  Styles,  violently  and  feloniously  did  make 
an  assault,  and  the  said  Lucy  Styles  then  and  there  violently, 
and  against  her  will,  feloniously  did  ravish  and  carnally  know ; 
contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 

6.  For  burglary,  ivith  intent  to  ravish ;  unth  a  count  for 
burglary,  icith  violence,  under  St.  7  Wm.  4  and  1  Vict, 
ch.  86,  §  2. 

The  jurors,  etc.,  upon  their  oath  present,  that  John  Clarke, 
late  of  B.  in  the  county  of  S.,  laborer,  on  the  eighth  day  of 

May  in  the  year  of  our  Lord ,  about  the  hour  of  twelve 

in  the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  James 
Thompson  there  situate,  feloniously  and  burglariously,  did 
break  and  enter,  with  intent  one  Hannah  Thompson,  the  wife 

^  "  The  intent  is  here  inserted,"  says  Wilmot,  (Law  of  Burglary,  p.  240, 
note  («),)  "  in  order  that  if  the  burglary  should  fail,  the  prisoner  might  still 
be  found  guilty  of  felony,  under  the  fourth  section  of  7  Wm.  4  and  1  Vict, 
ch.  85. 

*  On  this  count,  if  the  evidence  of  actual  rape  should  fail,  but  the  jury 
should  be  satisfied  of  the  intent,  the  defendant  could  be  convicted  of 
burglary- 


80  BURGLARY.  [CHAP.  XIIL 

of  the  said  James  Thompson,  violently,  and  against  her  will, 
feloniously  to  ravish  and  carnally  know;  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  said  John  Clarke,  on  the  day  and  year 
aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  having  so 
burglariously  as  aforesaid  broken  and  entered  the  said  dwell- 
ing-house of  the  said  James  Thompson,  then  and  there 
upon  the  said  Hannah  Thompson,  in  the  said  dwelling-house 
then  and  there  being,  wilfully,  unlawfully,- and  maliciously 
did  make  an  assault,  and  the  said  Hannah  Thompson  then 
and  there  did  strike  and  beat ;  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace,  etc. 


7.  For  burglary  and  larceny,  at  common  law,  by  breaking-  into 
a  parish  church ;  with  a  count  vpon  the  St.7&D8  Geo.  4, 
ch.  29,  for  sacrilege,  in  breaking  out  of  a  church  after  the 
committal  of  larceny  therein. 

The  jurors,  etc.,  on  their  oath  present,  that  JMichael  Wil- 
son, late  of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of 

June  in  the  year  of  our  Lord ,  about  the  hour  of  one  of 

the  clock  in  the  night  of  the  same  day,  wilh  force  and  arms, 
at  B.  aforesaid,  in  the  county  aforesaid,  a  certain  church  there 
situate,  that  is  to  say,  the  parish  church  of  B.  aforesaid,  feloni- 
ously and  burglariously  did  break  and  enter,  and  one  pair  of 
candlesticks,  of  the  value  of  twenty  dollars,  and  one  com- 
munion dish,  of  the  value  of  fifty  dollars,  of  the  goods  and 
chattels  of  Henry  Jackson  and  others,  being  parishioners  of 
B,  as  aforesaid,  in  the  said  church  then  and  there  being  found, 
then  and  there  feloniously  and  burglariously  did  steal,  take, 
and  curry  away;  against  ilic  peace,  etc.,  and  contrary  to  the 
form  of  the  slatule  in  such  case  made  and  j)r()vi(led.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  furlher  pre- 
sent, that  the  said  Mielmel  Wilson  on  the  <\:\y  and  year  afore- 
said, at  J>.  aforesnid,  in   ili<-  coiuily  aforesaid,  al)out  the  hour 


CHAP,  xiil]  burglary.  81 

of  one  of  the  clock  in  the  night  of  the  same  day,  in  the  said 
parish  church  of  B,  then  and  there  being,  and  having  then 
and  there  committed  the  felony  aforesaid,  then  and  there 
feloniously  and  sacrilegiously  did  break  out  of  the  said 
church ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 

8.  For  being'  in  a  divelling-hoiise  with  intent  to  commit  fel- 

ony^  and  breaking  out  contrary  to  the  St.  7  &  8  Geo.  4, 
ch.  29,  §  11. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of  B. 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  between  the  hours  of  nine  of  the  clock 

at  night  and  six  in  the  morning,^  that  is  to  say,  about  the 
hour  of  eleven  of  the  clock  in  the  night  of  the  same  day,  with 
force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  was 
unlawfully  in  the  dwelling-house  of  one  T.  L.  there  situate, 
with  intent  to  commit  felony.  And  that  the  said  C.  D.  being 
so  as  aforesaid  in  the  said  dwelling-house  on  the  same  day 
and  year  aforesaid,  afterwards,  to  wit,  between  the  hours  of 
nine  of  the  clock  at  night  and  six  in  the  morning,  to  wit, 
about  the  hour  of  eleven  of  the  clock  in  the  night  of  the  same 
day,  then  and  there  feloniously  and  burglariously  did  break 
out  2  of  the  said  dwelling-house  of  the  said  T.  L. ;  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  etc. 

9.  For  burglary,  ivith  intent  to   commit  felony,  laying  also 

burglary  with  violence.^ 

The  jurors,  etc.,  upon   their   oath  present,  that   William 

^  This  precedent  slightly  differs  from  the  preceding  one,  inasmuch  as  it 
states  the  time  with  greater  latitude.  See,  however,  ante,  p.  G6,  and  Wad- 
dington's  case,  2  East,  P.  C.  513;  The  State  v.  ]\Iather,  N.  Chipman,  32. 

-  An  indictment  alleging  that  the  prisoner  "  did  break  to  get  out,"  or  "  did 
break  and  get  out,"  is  bad,  the  words  of  the  statute  being  "  break  out."  Eex 
V.  Compton,  7  Carrington  and  Payne,  139. 

'  On  this  precedent  the  defendant  may  be  found  guilty,  either  of  burglary 


82  BURGLARY.  [CHAP.  XIII. 

Jones,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first  day 

of  June  in  the  year  of  our  Lord ,  at  B.  aforesaid,  in  the 

county  aforesaid,  between  the  hours  of  nine  of  the  clock  at 
night  and  six  of  the  clock  in  the  morning,  that  is  to  say,  about 
the  hour  of  ten  of  the  clock  in  the  night  of  the  same  day,  with 
force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the 
dwelling-house  of  one  Richard  Hughes  there  situate,  feloni- 
ously and  burglariously  did  break  and  enter,  with  intent  to 
commit  felony.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  William  Jones,  so 
being  in  the  said  dwelling-house  of  the  said  Richard  Hughes 
as  aforesaid,  at  the  day  and  hour  aforesaid,  upon  one  Charles 
Price,  in  the  said  dwelling-house  then  being,  then  and  there 
unlawfully,  wilfully,  and  maliciously  did  make  an  assault, 
and  the  said  Charles  Price  did  then  and  there  stab  and  cut, 
with  intent  the  said  Charles  Price  then  and  there  to  disable  ; 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace,  etc. 

10.  Burglary,  laying  an  accessory  before  and  after  the  fact?- 

Inquiratiu-  pro  Domina  Regina,  quod  ciim  J.  H.  nuper  de 
H.  in  comitatu  prasdicto,  yeoman,  decimo  die  Mali  anno 
Reginte  Eliz.,  etc.,  decimo  quarto  domum  mansionalem  cujus- 
dam  P.,  armigeri  apud  H.,  pryedictum  in  comitatu  pra3dicto 
circa  horam  decimam  in  nocte  ejusdem  diei,  felonice  et  bur- 
glariter  fregit  et  intravit,  et  quadraginta  libras  in  pecuniis 
numcratis  in  quadam  cista  ad  tunc  in  domo  pra^dicta  exis- 
tentes,  de  bonis  et  catallis  praidicti  P.,  apud  H,  pra?dictum  in 
comitatu  pra3dicto  ad  tunc  et  ibidem  inventis,  felonice  cepit 
et  asportavit  contra  pacem  dicta;  Domina;  RcgiuEe,  et  si  qui- 

•witli  violoiH-e,  of  Riinplo  })nrglary,  of  fi'lony  by  stabbing,  with  intent  to  dis- 
able, or  of  a  '"oninion  assault. 

'  Crnniptori'rt  Justice,  178,  a,  ((■<!.  KlOd).  Tlie  edition  of  Crompton,  pub- 
lislieil  in  1  .^H.'j,  does  not  contain  the  wonls  "  felonice  ct  burglai'Iter  "  lietbre 
"fregit  ct  intravit."  They  are,  howcjver,  to  be  fbuiul  in  the  edition  published 
in  lOOG.  This  precedent  doe.s  nf)t  contain  the  words  "  vi  et  ariuis,"  as  do 
other  of  hi.s  precedents  of  indictments  ^ut  ))urglary. 


CHAP.  XIII.]  BURGLARY,  83 

dam  Christopherus  G.,  nuper  de  H.,  praedicto,  in  comitatu 
Somerset,  yeoman,  ante  feloniam  prsedictam,  per  ipsum  J.  H., 
in  forma  preedicta  factam  et  perpetratam,  videlicit,  sexto  die 
Maii,  anno  decimo  quarto  supradicto,  eundem  J.  H.,  apud  H., 
praBdictura  in  comitatu  praedicto,  ad  feloniam  praedictam  in 
formfi,  praedictS,  sic  faciendam  felonic^  excitavit,  abettavit  et 
procuravit,  contra  pacem,  etc.  Et  si  quidam  Joannes  R., 
nuper  de  C,  in  comitatu  praedicto,  yeoman,  sciens'  praefatum 
J.  H.,  feloniam  praedictam,  in  forma  praedicta  sic  fecisse  et  per- 
petrasse,  eundem  J.  H.  dicto  decimo  die  Maii,  anno  supradicto 
post  feloniam  praedictam  per  ipsum  J.  H.,  sic  factam  et  per- 
petratam, eundem  J.  H.,  apud  H.  prtedictum  in  comitatu 
praedicto  felonic^  receptavit,  confortavit,  et  hospitavit,  con- 
tra pacem  dictsB  Dominae  Reginae,  etc. 

11.  For  having  in  possession  implements  of  burglary} 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord ,  at  B.  afore- 
said, in  the  county  aforesaid,  knowingly  did  have  in  his  pos- 
session certain  implements,  that  is  to  say,  ten  skeleton  keys, 
adapted  and  designed  for  forcing  and  breaking  open  the 
dwelling-house  of  one  E.  F.  there  situate,  with  intent  then 
and  there,  in  the  night  time  of  the  said  day,  the  dwelling-house 
of  the  said  E.  F.  there  situate,  feloniously  and  burglariously 
to  break  and  enter,  and  then  and  there,  in  the  night  time  as 
aforesaid,  the  goods  and  chattels  of  the  said  E.  F.,  in  the 
same  dwelling-house  then  and  there  being,  feloniously  and 
burglariously  to  steal,  take,  and  carry  away ;  the  said  C.  D. 
then  and  there  well  knowing  the  said  implements  to  be 
adapted  and  designed  for  the  purpose  aforesaid,  with  intent 
then  and  there  feloniously  and  burglariously  to  use  and  em- 
ploy the  said  implements  for  the  purpose  aforesaid ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

^  See  Regina  v.  Oldham,  2  Denison,  C  C.  472 ;  5  Cox,  551 ;  3  Carrington 
&  Kirwan,  14  Eng.  Law  and  Eq.  Reps.  568. 


84  ■  BURGLARY.  [CHAP.  XIII. 

12.  For  being- foimd  bynight  armed,  ivith  intent  to  break  into  a 
dwelling-house,  and  commit  a  felony  therein.^ 

That  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June  in  the  year  of  our  Lord  ,  about  the 

hour  of  eleven  of  the  night  of  the  same  day,  at  B.  aforesaid, 
in  the  county  aforesaid,  was  found  in  the  night  time  as  afore- 
said, then  and  there  being  armed  with  a  dangerous  weapon, 
to  wit,  a  gun,  with  intent  then  and  there,  in  the  night  time  as 
aforesaid,  to  break  and  enter  the  dwelling-house  of  one  E.  F. 
there  situate,  and  then  and  there,  in  the  night  time  as  afore- 
said, in  the  said  dwelling-house,  feloniously  to  steal,  take,  and 
carry  away  the  goods  and  chattels  and  personal  property  of 
the  said  E.  F.,  in  the  said  dwelling-house  then  and  there 
being ;  against  the  peace,  etc.,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

^  Lord  Campbell's  Acts,  by  Greaves,  p.  73. 


CHAPTER    XIV. 

CHEATS   AT   COMMON   LAW,   AND    STATUTORY    CHEATS   BY   FALSE 
PRETENCES. 

"  It  seems  to  be  the  fair  result  of  the  cases,"  says  Gabbett, 
"  that  a  cheat,  in  order  to  be  indictable  at  common  law,  must 
have  been  public  in  its  nature,  by  being  calculated  to  defraud 
numbers,  or  deceive  or  injure  the  public  in  general ;  or  by 
affecting  the  public  trade  or  revenue,  the  public  health,  or 
being  in  fraud  of  public  justice,  etc.  And  the  other  cases  to 
be  found  in  the  books,  of  cheats  apparently  private,  which 
have  been  yet  held  to  be  indictable  at  common  law,  will, 
upon  examination,  appear  to  involve  considerations  of  a  pub- 
lic nature  also,  or  else  to  be  founded  in  conspiracy  or  for- 
gery." ^  Under  this  head  mayalso  be  classed  the  offence  of 
selling  unwholesome  food,  which  was  indictable  by  the  com- 
mon law,  and  by  the  statute  of  51  Henry  3,  ch.  6.^  Where 
the  indictment  charged  the  defendant,  a  baker,  with  supplying 
to  the  military  asylum  at  Chelsea,  as  and  for  good,  whole- 
some,  household   loaves,  divers  loaves    mixed  with    certain 


1  1  Gabbett,  Crim.  Law,  205.  See  Rex  v.  Wheatley,  2  Burrow,  1 1 25 ; 
Rex  V.  Lara,  6  Term  Rep.  465  ;  2  Leach,  C.  C.  (4th  London  ed.),  647  ;  Rex 
V.  Bryan,  2  Strange,  866 ;  2  East,  P.  C.  819  ;  Rex  v.  Young,  3  Term  Rep.  98  ; 
1  Leach,  C.  C.  (4th  London  ed.),  505 ;  Cross  v.  Peters,  1  Greenleaf,  (Ben- 
nett's ed.)  343,  350;  Commonwealth  v.  Hearsey,  1  Mass.  (Rand's  ed.),  137,- 
Commonwealth  v.  AVarren,  6  Mass.  (Rand's  ed.),  72 ;  The  People  v.  Stone, 
9  Wendell,  182;  The  State  v.  Justice,  2  Devereaux,  199;  The  State  v. 
Stroll,  1  Richardson,  244 ;  Hartmann  v.  The  Conmion wealth,  5  Barr,  60. 

*  2  East,  P.  C.  821 ;  Rex  i'.  Treeve,  2  East,  P.  C.  821 ;  3  Greenleaf,  Ev. 
§85. 

8 


86  CHEATS    AT   COMMON   LAW.  [CHAP.  XIV. 

noxious  and  unwholesome  materials,  not  fit  for  the  food  of 
man,  which  he  well  knew  to  be  so  at  the  time  he  so  supplied 
them,  it  was  held,  on  motion  in  arrest  of  judgment,  that  the 
indictment  was  sufficient,  though  it  did  not  show  what  the 
noxious  materials  were ;  because  if  this  exception  were  good, 
then  if  death  had  ensued,  the  defendant  could  not  be  indicted 
until  it  was  ascertained  what  the  particular  ingredients  were ; 
and  as  to  the  second  exception,  that  the  indictment  did  not 
state  that  the  defendant  intended  to  injure  the  children's 
health,  the  principle  is  a  universal  one,  that  where  a  man  is 
charged  with  doing  an  injurious  act,  of  which  the  probable 
consequence  may  be  highly  injurious,  the  intention  is  an 
inference  of  law  resulting  from  doing  the  act.^  And  it  seems 
that  the  indictment  must  charge,  that  the  defendant  delivered 
the  unwholesome  food  as  an  article  for  the  food  of  man.^ 

To  cheat  a  man  of  his  money  or  goods,  by  using  false 
weights  or  measures,  has  been  indictable  at  common  law 
from  time  immemorial.^  In  addition  to  this,  the  statute  33 
Henry  8,  ch.  1,  which  has  been  adopted  and  considered  as  a 
part  of  the  common  law  in  some  of  the  United  States,  and 
its  provisions  have  been  either  recognized  as  common  laAV,* 
or  expressly  enacted,  in  nearly  all  of  them,  was  directed,  as 
appears  from  its  title  and  preamble,  against  such  ))ersons  as 
received  money  or  goods  by  means  of  counterfeit  letters  or 
privy  tokens  in  other  men's  names.  The  statute  33  Henry  8, 
ch.  1,  extended  only  to  cases  where  the  money,  etc.,  was 


^  Rex  V.  Dixon,  4  Campbell,  12;  3  IMaule  &  Sclwyn,  15. 

'  Rex  V.  Ilavnes,  4  Maule  &  Selwyn,  214. 

'  1  Gabbett,  Crim.  Law,  201  ;  3  Greenleaf,  Ev.  §  8G  ;  Commonwealth  v. 
Warren,  G  IMass.  (Rand's  cd.),  72.  Tliis  is  also  a  cheat  by  false  token  or  pre- 
tence, when  it  is  a  cheat  at  all,  for  the  cheat  consists  not  merely  in  using 
another  tlian  the  standard  weight  or  measure,  but  in  j)retending  expressly, 
or  by  implication,  that  it  is  a  dilferent  weight  or  measure  from  whnt  it  is  in 
fact.  Report  of  the  Massachusetts  Criminal  Law  Commissioners,  'J"it.  Cross 
Cheats,  §  7,  note  (ij). 

*  Commonwealth  i".  Warren,  0  ]\Iass.  (Rand's  ed.),  72;  The  I'eople  v. 
Johnson,  12  Johnson,  292.  Rut  not  in  Pennsylvania.  Respuljliea  v.  Powell, 
1  Dalla.s,  47. 


CHAP.  XIV.]  FALSE   PRETENCES.  87 

obtained  by  means  of  a  false  token  or  counterfeit  letter  in  the 
name  of  another ;  but  this  provision  not  being  deemed  suffi- 
ciently extensive,  the  statute  30  Geo.  2,  ch.  24,  was  made,  for 
the  purpose  of  including  all/a/6-t'  pretences  loliatsoever.  The 
substantial  provisions  of  this  statute  have  been  incorporated 
into  the  legislation  of  many  of  the  United  States.^  The  doc- 
trine has  been  expressly  laid  down  in  many  cases,  both  Eng- 
lish and  American,  and  may  now  be  regarded  as  the  prevail- 
ing and  established  construction  of  these  statutes,  that  a  cheat 
is  not  indictable,  unless  the  false  pretence  or  token  be  such  as 
might  deceive  a  person  of  ordinary  prudence  and  caution.^ 

Under  the  recent  statutes,  as  well  as  under  the  prior  acts, 
the  indictment  should  not  only  charge  that  the  defendant 
"  unlawfully,  knowingly,'^  and  designedly,  did  falsely  pretend," 

1  The  statute  of  Connecticut  embraces  the  provisions  of  the  statutes  33 
Hen.  8,  32  Geo.  2,  and  52  Geo.  3  ;  and  the  English  decisions  under  those 
statutes  are  applicable  to  cases  arising  under  the  Connecticut  statute.  The 
State  V.  Rowley,  12  Connecticut,  101.  In  Massachusetts,  the  first  section 
of  St.  1815,  ch.  136,  was  a  copy  of  St.  30  Geo.  2,  ch.  24.  This  section  was 
revised  and  combined  with  some  provisions  In  relation  to  other  similar 
offences,  in  the  Rev.  Sts.  ch.  126,  §  32.  Morton,  J.,  Commonwealth  v.  Drew, 
19  Pickering,  179,  182.  By  St.  1854,  ch.  12,  §  1,  it  is  enacted,  that  "  The 
provisions  of  the  Rev.  Sts.  ch.  126,  §  32,  shall  not  apply  to  any  person  for 
obtaining,  by  way  of  purchase  from  another,  goods,  wares,  merchandise,  or 
other  property,  by  means  of  any  false  pretence  relating  to  such  purchaser's 
means  or  ability  to  pay,  when,  by  the  terms  of  such  purchase,  payment  for 
the  same  is  not  to  be  made  upon  or  before  the  delivery  of  the  property  so 
obtained,  unless  such  pretence  shall  be  made  in  writing,  and  signed  by  the 
party  to  be  charged." 

'  Rex  V.  AVhcatley,  2  Burrow,  1228;  Rex  v.  Young,  3  Term  Rep.  98; 
Rex  V.  Goodhall,  Russell  &  Ryan,  C.  C.  461  ;  The  People  v.  Galloway,  17 
Wendell,  540  ;  The  People  v.  Williams,  4  Hill,  (New  York,)  9  ;  The  People 
V.  Miller,  14  Johnson,  371  ;  The  People  v.  Johnson,  12  Johnson,  292;  The 
People  V.  Lambert,  9  Cowen,  588 ;  The  People  v.  Babcock,  7  Johnson,  204 ; 
The  People  v.  Stetson,  4  Barbour,  151 ;  The  State  v.  Mills,  17  Maine,  211  ; 
Cross  V.  Peters,  1  Greenleaf  (Bennett's  ed.),  343,  350 ;  Commonwealth  v. 
Drew,  19  Pickering,  179;  Commonwealth  v.  Call,  21  Pickering,  515;  Com- 
monwealth V.  Wilgus,  4  Pickering,  177;  The  State  v.  Simpson,  3  Hawks, 
620  ;  Burrow  v.  The  State,  7  English,  (Arkansas,)  65  ;  Report  of  the  Massa- 
chusetts Criminal  Law  Commissioners,  Tit.  Gross  Cheats,  §  7,  note  (g). 

'  In  Massachusetts,  it  has  been  held,  that  as  the  word  "  knowingly  "  is  not 
in  the  Rev.  Sts.  ch.  126,  §  32,  an  indictment  which  does  not  contain  that 


88  FALSE  PRETENCES.  [CHAP.  XIV. 

etc.,  but  it  should  proceed  to  charge  also,  that  the  defendant 
did  "unlawfully,  knowingly,  and  designedly  obtain,"  etc.; 
and  the  allegation  of  the  intent  to  cheat  should  follow  the 
charge  of  obtaining  the  money,  goods,  etc.^ 

The  next  question  which  arises  with  respect  to  the  form  of 
indictment  under  the  recent  statutes  is,  whether  it  is  suffi- 
cient to  state  that  the  cheat  was  effected  by  means  of  certain 
false  pretences,  or  whether  it  is  essential  that  the  false  pre- 
tences should  be  specially  set  forth.  And  this  question  may 
be  decided  by  a  reference  to  the  cases  which  Avere  determined 
upon  the  construction  of  the  former  statutes,  which  are  in 
pari  materia,  as  well  as  by  a  reference  to  the  later  cases. 
Where  the  defendant  was  convicted  under  33  Hen.  8,  ch.  1, 
for  procuring  a  promissory  note  by  false  tokens,  the  judgment 
was  arrested,  because  the  indictment  did  not  specify  the  false 
tokens,^  And  where  the  defendant,  who  was  indicted  under 
30  Geo.  2,  ch.  24,  for  obtaining  a  sum  of  money  by  false  pre- 
tences, the  judgment  was  reversed  upon  a  writ  of  error,  on 
the  ground,  also,  that  the  indictment  did  not  state  what  the 
false  pretences  were.^  The  reasons  which  appear  to  have 
governed  these  decisions  were,  that  the  tokens  in  the  one 
case,  and  the  pretences  in  the  other,  were  of  the  very  essence 
of  the  crime ;  and  that  the  defendant,  therefore,  should  in 
each  have  had  notice  of  them,  so  as  to  prepare  for  his  de- 
fence ;  and  in  order,  also,  that  the  court  should  be  thereby 
enabled  to  judge  whether  the  tokens  or  pretences  were  within 

■word,  but  follows  the  words  of  the  statute,  is  sufficient  on  motion  in  arrest  of 
judgment.  Commonwealth  v.  Hulbert,  12  Metcalf,  446.  And  so  in  Eng- 
land, liegina  r.  Bowen,  13  Queen's  Bench  Rep.  790;  3  Cox,  C.  C.  483, 
overruling  Regina  v.  Henderson,  2  Moody,  C.  C.  142 ;  Carrington  &  Marsh- 
man,  328 ;  and  Regina  v.  Gruby,  1  Cox,  C.  C.  249. 

'  1  (iahbett,  Criui.  Law,  212.  And  see  Rex  v.  Rushworthy,  Russell  & 
Ryan,  C.  C.  317. 

'  Rex  V.  Munoz,  2  Strange,  1127;  more  fully  reported  in  7  Modern  Rep. 
315. 

'  Rex  V.  Mason,  2  Term  Rep.  581  ;  1  Leach,  C.  C.  (4th  London  cd.),  487  ; 
2  East,  r.  C.  837;  1  (;abl)ctt,  Crim.  Law,  213;  1  Starkie,  Crini.  VI  (Lon- 
don ed.  1828),  95;  Burrow  v.  Tlu;  State,  7  English,  (Arkansas,)  05.  The 
district  attorney  is  nut  bound  to  furnish  a  bill  of  particulars  of  the  false  pre- 
tences used  by  the  defendant.     The  United  States  v.  Ross,  1  Morris,  164. 


CHAP.  XIV.]  FALSE   PRETENCES.  89 

the  statute  on  which  the  indictment  was  framed ;  and  if  so, 
to  apply  the  suitable  punishment.  And  these  reasons  appear 
to  be  equally  applicable  to  the  case  of  an  indictment  upon  the 
recent  statutes.  And  it  has  been  further  held,  that  when 
money  or  other  property  is  obtained  by  a  sale  or  exchange  of 
property,  effected  by  means  of  false  pretences,  such  sale  or 
exchange  ought  to  be  set  forth  in  the  indictment,  and  that 
the  false  pretences  should  be  alleged  to  have  been  made  with 
a  view  to  effect  such  sale  or  exchange,  and  by  reason  thereof 
the  party  was  induced  to  buy  or  exchange,  as  the  case  may 
be.^  But  though  the  false  pretences  must  be  specifically 
stated,  it  seems  to  be  clear,  that  no  greater  certainty  or  pre- 
cision can  be  required  than  to  state  them  truly,  as  they  were 
described  to  the  party  at  the  time  he  was  imposed  upon.^ 
Thus,  in  a  case  where  an  objection  was  taken,  that  the  wager 

^  Common^yealth  v.  Strain,  10  Metcalf,  521  ;  The  State  v.  Philbrick,  31 
Maine,  401.  In  Commonwealth  i'.  Strain,  Dewey,  J.,  said,  "  Although  the 
language  of  the  Rev.  Sts.  ch.  126,  §  32,  is  very  broad,  j'et  all  will  agree  that, 
in  its  practical  application,  the  false  declaration  must  be  made  to  a  party 
•who  has  an  interest  in  the  matter,  and  is  affected  injuriously  by  the  false- 
hood. We  go  further,  however,  and  hold,  that  in  a  case  like  the  present, 
where  the  alleged  false  pretences  were  injurious  only  by  inducing  another 
per.son  to  buy  the  article  as  to  which  such  false  representations  were  made, 
such  sale,  or  offer  for  sale,  must  be  set  out  as  a  part  of  the  facts  relied  upon, 
and  as  a  material  allegation  in  the  description  of  the  offence. 

"  A  recurrence  to  the  reported  cases  strongly  confirms  us  in  the  view  we 
have  taken  of  this  indictment.  In  the  case  of  The  State  v.  Mills,  17  Maine, 
211,  the  form  of  the  indictment  was,  that  the  defendant  'did  falsely  pretend 
that  a  certain  horse,  which  he  then  and  there  wished  and  offered  to  exchange, 
was  a  sound  horse,'  etc.  In  Commonwealth  v.  Stone,  4  IMetcalf,  43,  the  con- 
tract and  sale  are  set  forth.  Other  similar  precedents  might  be  referred  to. 
In  one  case,  however,  Regina  v.  Bloomfield,  Carrington  &  Marshman,  537, 
the  form  of  allegation  seems  to  correspond  with  the  present.  In  that 
case  no  question  was  raised  as  to  the  sufficiency  of  the  indictment,  but  only 
upon  points  ruled  by  the  presiding  judge  at  the  trial.  In  The  People  r. 
Gates,  13  Wendell,  311,  it  was  held,  that  an  indictment  for  obtaining  goods 
by  false  pretences  must  contain  all  the  material  facts  and  circumstances, 
which  the  public  prosecutor  would  be  bound  to  prove,  in  order  to  procure  a 
conviction." 

*  1  Gabbett,  Crim.  Law,  213.  And  see  Commonwealth  v.  Hulbert,  12 
Metcalf,  446. 


90  FALSE  PRETENCES.  [CHAP.  XIV. 

therein  mentioned  was  stated  to  have  been  made  with  a 
colonel  in  the  army,  then  at  Bath,  without  setting  forth  his 
name,  or  any  other  special  designation  of  him,  the  objection 
was  overruled ;  the  court  considering  the  charge  to  be  as  cer- 
tain as  the  nature  of  the  thing  would  admit,  the  name  of  the 
colonel  not  being  perhaps  mentioned  at  the  time  the  defend- 
ants spoke  of  the  pretended  wager ;  and  because,  if  such  a 
wager  had  been  actually  depending,  it  was  competent  for  the 
defendants  to  have  proved  it  in  their  defence,  their  attention 
having  been  sufficiently  called  to  it  by  the  indictment.^  But 
it  is  not  necessary  to  state  in  what  manner  the  false  pretence 
was  calculated  to  effect,  or  did  efl'ect  the  obtaining  of  the 
money. 2 

It  has  been  very  recently  held  in  England,  upon  a  case 
reserved,  where  the  defendant  was  indicted  for  fraudulently 
offering  a  "  flash  note  "  in  payment,  under  the  pretence  that  it 
was  a  Bank  of  England  note,  that  instruments  need  not  be 
set  out  in  an  indictment,  except  where  the  court  could  derive 
assistance  from  seeing  a  copy  of  it  on  the  record ;  as  where 
the  case  turns  on  the  nature  and  character  of  the  instrument, 
as  distinguished  from  its  quality  of  good  or  bad.  In  this 
case.  Chief  Justice  Wilde  said,  "  It  is  unnecessary  to  set  out 
the  instrument  in  those  cases  where  it  cannot  be  of  any  use 
to  the  court,  in  order  that  they  may  arrive  at  the  conclusion 
whether  it  is  or  is  not  a  valid  document.  Had  it  been  stated 
in  the  indictment  as  a  certain  paper  purporting  to  be  a  good 
and  valid  promissory  note,  and  that  it  was  not  a  good 
and  valid  promissory  note,  it  might  have  been  necessary  to 
set  it  out,  in  order  that  the  court  might  have  seen  whether  it 
was  or  was  not.  In  this  case,  the  court  could  not  have  derived 
any  assistance  whatever  from  setting  the  paper  out;  for  all 
that  appears  uj)<)n  the  indictment,  it  might  have  been  nothing 
but  iiier()gly))liics.  The  indictment  states  that  it  was  a  cer- 
tain pajjer  produced  by  the  prisoners  which  they  falsely  pre- 


'  Y.iun;.'  1'.  Rc'X,  .T   'JVnii  \ir]>.  98;   2   Kast  P.  C.  82,  82;!  ;  1  Leach,  C.  C. 
(4tli  I.oixlon  (mI.),  iO.'i  ;   1  (iiihlHitt,  C.'riin.  Law,  214. 

'  Hamilton  v.  Kegina,  9  Queen's  liench  Kep.  271  ;  2  Cox,  C.  C.  11. 


CHAP.  XIV.]  FALSE   PRETENCES.  91 

tended  was  a  good  and  valid  promissory  note,  whereas  it 
was  not.  Wliere  the  note  is  required  to  be  set  out,  something 
has  turned  upon  the  nature  of  the  note,  rendering  it  necessary 
that  the  court  should  see  it."  ^ 

It  is  also  to  be  considered,  how  far  it  is  necessary  to  make 
an  express  and  distinct  allegation  as  to  the  parts  of  the  trans- 
action which  are  meant  to  be  charged  as  false  pretences.  In 
Airey's  case  it  was  held,  that  no  technical  form  of  words 
was  required  for  the  purpose ;  but  that  it  was  sufficient  if, 
upon  the  whole  indictment,  it  appeared  that  the  money  or 
goods,  etc.,  had  been  obtained  by  means  of  the  pretence  set 
forth,  and  that  such  pretence  was  false,  and  within  the  mean- 
ing of  the  statute.'^  But  in  Perrott's  case  it  was  decided,  that 
it  is  not  enough  for  the  indictment  to  allege  "  that  the  defend- 
ant did  falsely  pretend,  etc.,  by  means  of  which  said  several 
false  pretences  the  defendant  did  obtain,"  etc.,  without  dis- 
tinctly ascertaining,  by  precise  averments,  which  the  partic- 
ular pretence  is  that  is  meant  to  be  falsified  ;  because  the 
word  "falsely"  does  not  necessarily  import  that  falsehood 
pervades  the  whole  allegation,  which  may  be  branched  out 
into  a  number  of  several  matters,  some"  of  which  are  true, 
and  others  false ;  and  the  indictment  should  therefore  nega- 
tive each  particular  which  is  meant  to  be  disproved ;  as  in 
the  case  of  perjury,  where  not  only  the  substance  of  the 
offence  must  be  charged,  but  there  must  be  also  the  proper 
averments  to  falsify  the  matter  wherein  the  perjury  is  assigned. 
And  Lord  Ellenborough  is  said  to  have  observed  in  this  case, 
"  that  he  was  at  a  loss  to  discover  why,  in  reason,  in  justice, 
and  in  mercy  to  the  party,  the  charge  of  obtaining  money  by 
false  pretences  should  not  be  as  distinctly  ascertained  by 
proper  averments,  that  specifically  draw  the  party's  attention 
to  it,  as  in  the  case  of  perjury;  "  and  "that  the  convenience 
of  mankind  demanded  that  the  charge  should  be  specific,  in 
order  that  a  party  should  not  be  distracted  amidst  the  con- 

*  Regina  v.  Coulson,  1  Temple  &  Mew,  C.  C.  332,  335  ;  4  Cox,  C.  C.  227 ; 
1  Deuison,  C.  C.  592  ;  1  Eng.  Law  and  Eq.  Rep.  550,  (1850). 
-  Rex  t".  Airey,  2  East,  30. 


92  FALSE   PRETENCES.  [CHAP.  XIV. 

fusion  of  a  multifarious  and  complicated  transaction,  parts  of 
which  only  are  meant  to  be  impeached  for  falsehood."  ^ 

"Though  an  indictment  for  perjury,"  says  Gabbett,  "and 
one  for  obtaining  money,  etc.,  by  false  pretences,  etc.,  agree, 
in  the  manner  above  mentioned,  as  to  the  necessity  in  each 
of  distinctly  negativing  the  particular  matters  to  be  falsi- 
fied ;  yet  there  is  a  distinction  between  these  offences,  which 
is  to  be  here  particularly  noticed ;  namely,  that  though  several 
persons  cannot  be  joined  in  one  indictment  for  perjury,  be- 
cause the  words  spoken  by  one  defendant  cannot  possibly  be 
applied  to  another  as  his  act  in  falsely  uttering  those  very 
Avords,  perjury  being,  in  its  nature,  a  single  transaction ;  yet 
in  the  case  of  a  cheat,  if  a  number  of  persons  are  all  present 
acting  a  different  part  in  the  same  transaction,  or  if  all  join  in 
the  relation  of  a  thing  as  within  their  own  knowledge,  they 
thus  obtain  a  greater  degree  of  credit,  and  one  alone  cannot 
be  said  to  have  obtained  the  money  or  goods,  etc.,  or  de- 
frauded the  prosecutor :  and  no  rule  of  criminal  proceeding  is 
therefore  violated  by  adjudging  them  guilty  of  the  imposition 
jointly;  and  any  supposed  inconvenience  arising  from  the 
confounding  the  evidence  as  to  the  several  defendants  may 
be  obviated  ;  because,  if  it  affects  them  differently,  the  judge 
who  tries  them  may  select  the  evidence  which  is  applicable  to 
each,  and  leave  their  cases  separately  to  the  jury."^  And 
where  two  persons  are  jointly  indicted,  evidence  that  one  of 
them,  with  the  knowledge,  approbation,  concurrence,  and 
direction  of  the  other,  made  the  false  pretences  charged,  war- 
rants the  conviction  of  both.^  All  parties  who  have  concurred 
and  assisted  in  the  fraud,  may  be  convicted  as  principals, 
though  not  present  at  the  time  of  making  the  pretence  and 
obtaining  the  money  and  goods.* 

'  li.'x  ;;.  Pcrrot,  2  Maulc  &  Selwyn,  379;  The  People  v.  Ilaynes,  11 
Wfiulell,  bin  ;  Amos  v.  The  State,  10  Humphreys,  117;  Tyler  i>.  Tiie  State, 
2  Humphreys,  .'J7;  The  State  r.  Smith,  8  lilaekforu,  489 ;  1  Gabbett,  Crim. 
Law,  214.     See  Commonwealth  v.  Strain,  10  Metcalf,  521,522. 

*  1  Gabbett,  Crim.  Law,  214,  215. 

*  Coinmonwealtli  v.  Il.irlcy,  7  Metcalf,  462. 

*  llegina  v.  Aloland,  2  Moody,  C.  C.  276. 


CHAP.  XIV.]  FALSE   PRETENCES.  93 

It  is  necessary  to  allege  who  was  the  owner  of  the  property- 
alleged  to  have  been  obtained  by  fajse  pretences,  or  an  excuse 
must  be  stated  for  not  making  the  averment.^  But  in  New 
York  it  has  been  held,  that  it  is  not  necessary  to  state  its 
value.2  It  is  not  necessary  to  allege  that  the  pretence  was 
made  ivith  the  intent  of  obtaining  the  money,  etc.,  it  is  suffi- 
cient to  show  that  the  pretence  was  made,  that  the  money, 
etc.,  was  obtained  thereby,  with  intent  to  defraud,  and  that 
the  pretence  was  false  to  the  knowledge  of  the  defendant.^ 

An  indictment  may  aver,  that  the  false  pretences  were 
practised  upon  one  person  and  his  money  obtained,  with 
intent  to  defraud  another.*  So  an  allegation,  that  the  defend- 
ant obtained  goods  of  a  firm  by  false  pretences  made  to  them, 
is  supported  by  proof  that  the  defendant  made  the  false  pre- 
tences to  their  clerk  and  salesman,  who  communicated  them 
to  one  of  the  firm,  and  that  the  goods  were  delivered  to  the 


1  Sill  V.  Regina,  1  Pearce,  C.  C.  132;  16  Eng.  Law  and  Eq.  Rep.  375  ; 
The  State  v.  Lathrop,  15  Vermont,  279;  The  State  v.  Smith,  8  Blackford, 
489;  Rex  v.  Martin,  8  Adolphus  &  Ellis,  481 ;  3  Neville  &  Perry,  472;  Rex 
V.  Norton,  8  Carrlngton  &  Payne,  196.  In  Commonwealth  v.  Davis,  The 
Monthly  Law  Reporter,  vol.  5,  N.  s.  p.  41,  the  defendant  was  indicted  for 
obtaining  the  money  of  A.  C.  by  false  pretences.  A.  C.  was  a  married 
■woman,  having  a  husband  living,  but  who  had  been  absent  for  about  three 
years  on  the  coast  of  Africa.  He  supplied  her  with  funds  for  the  support  of 
herself  and  her  family  in  Boston,  and  the  money  obtained  of  her  was  part  of 
such  remittance.  The  judge  presiding  at  the  trial  in  the  Municipal  Court 
instructed  the  jury,  that  if  they  found  at  the  time  of  the  transaction  he  had 
been  absent  three  years,  was  not  intending  to  return  soon,  had  fixed  no  time 
for  his  return,  and  had  left  his  wife  and  family  in  Boston  without  other 
means  of  support  than  those  supplied  by  him  as  above,  and  sent  this  money 
to  her  to  be  disposed  of  as  she  should  choose,  without  interference  or  control 
on  his  part ;  and  the  defendant,  in  obtaining  the  money,  treated  and  acted 
■with  her  as  a.  feme  sole,  and  obtained  it  of  her  as  her  money,  and  gave  her 
his  notes  payable  to  her ;  such  facts  would  be  sufficient  to  sustain  the  allega- 
tion that  the  money  was  her  property.  The  defendant  ■was  found  guilty ;  but 
the  Supreme  Court  held  otherwise,  and  set  aside  the  verdict. 

^The  People  v.  Stetson,  4  Barbour,  151. 

»  Hamilton  v.  Regina,  9  Queen's  Bench  Rep.  271 ;  2  Cox,  C.  C.  11. 

*  Commonwealth  v.  Call,  21  Pickering,  515.  But  see  Rex  v.  Lara,  1 
Leach,  C.  C.  (4th  London  ed.),  647. 


94  FALSE   PRETENCES.  [CHAP.  XIV. 

defendant  in  consequence  of  those  false  pretences.  To  con- 
vict the  defendant  on  suc]i  indictment,  it  is  not  necessary  to 
prove  that  he  obtained  the  goods  on  his  own  account,  or  that 
he  derived,  or  expected  to  derive,  any  personal  pecuniary  ben- 
efit therefrom.^  A  false  pretence  actually  made  to  A.  in  B.'s 
hearing,  whereby  money  is  obtained  from  B.,  may  be  laid  as 
made  to  B.^ 

The  offence  consists  in  obtaining  the  money ;  and  where  it 
was  transmitted  in  a  letter,  mailed  by  the  defendant's  request, 
in  the  county  of  A.,  but  which  reached  him  in  the  county  of 
B.,  it  was  held,  that  this  was  an  obtaining  of  the  money  in 
the  county  of  A.,  and  that  the  venue  was  rightly  laid  there.^ 
And  where  A.,  residing  in  Ohio,  sent  by  innocent  agents  to 
a  firm  of  commission-merchants  in  New  York  city,  forged 
receipts,  purporting  to  be  signed  by  a  certain  forwarder  in 
Ohio,  acknowledging  the  receipt  by  him,  from  A.,  of  certain 
goods  for  and  on  account  of  the  said  firm  in  New  York,  upon 
which  A.  obtained  advances  from  said  firm,  it  was  held,  that 
the  crime  was  committed  in  New  York,  although  the  defend- 
ant had  never  been  in  New  York,  and  the  receipts  were 
drawn  and  signed  in  Ohio.* 

As  to  the  evidence  upon  trials  for  this  offence,  it  is  to  be 
observed,  that  the  offences  must  not  only  be  distinctly  set  out, 
but  must  be  proved  as  laid,  without  any  substantial  variance. 
And,  therefore,  where  the  indictment  stated  that  the  defendant 
pretended  that  he  had  paid  a  sum  of  money  into  the  Bank  of 
England  ;  and  the  evidence  was,  that  the  defendant,  upon  the 
occasion  referred  to  in  the  indictment,  had  said,  "  the  money 
has  been  paid  '  at  the  bank,'"  and  not  that  he  had ])aid  it,  this 
was  held  to  be  a  fatal  variance.^    But  it  is  not  necessary  that 

'  Commonwealth  v.  Ilarley,  7  IVIetealf,  462 ;  Commonwealth  v.  Call,  21 
Pickerinp,  515. 

*  lic^zina  V.  Dent,  1  Carrington  &  Kirwan,  249. 

'  Kc;.'ina  v.  Jones,  1  Dcnison,  C.  C.  651  ;  1  Temple  &  Mow,  C.  C.  270;  4 
Cox,  C.  C.  198;  1  Knj^.  Law  and  Kij.  liep.  5.'i3.  See  also  Tlic  People  v. 
(jrimn,  2  liarboiir,  427. 

*  'I'lie  reoj)le  I).  Adams,  ."J  Donio,  190  ;   1  Comstock,  173. 
■'  lUx  i;.  I'lcstow,  1  Camj)bell,  494. 


CHAP.  XIV.]  FALSE   PRETENCES.  95 

all  the  false  pretensions  or  allegations  set  forth  in  the  indict- 
ment should  be  proved.^  And  it  seems  that  it  will  be  suffi- 
cient if  any  entire  allegation  of  pretence  and  falsehood  be 
sustained,  provided  that  it  shall  also  appear  that  the  cheat 
was  effected  by  means  of  such  falsehood ;  for  it  is  clear,  that 
an  attempt  to  obtain  money  by  false  pretences,  though  it  may 
be  indictable  upon  common  law  principles,^  is  neither  within 
the  recent  statutes,  nor  the  prior  statutes  relative  thereto.^ 


1.  Indictment  at  common  laiv^for  selling-  by  false  scales^ 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 

to  wit,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

and  from  thence  until  the  taking  of  this  inquisition,  C.  D.  late 
of  B.  in  the  county  of  S.,  shopkeeper,  did  use  and  exercise 
the  trade  and  business  of  a  shopkeeper,  and  during  that  time 
did  deal  in  the  buying  and  selling  by  weight  of  divers  goods, 
wares,  and  merchandises,  to  wit,  at  B.  aforesaid,  in  the  county 
aforesaid,  and  that  whilst  the  said  C.  D.  used  anci  exercised 
his  said  trade  and  business,  to  wit,  on  the  said  first  day  of 

June  in  the  year  of  our  Lord ,  and  on  divers  other  days  and 

times  between  that  day  and  the  day  of  taking  of  this  inqui- 
sition, at  B.  aforesaid,  in  the  county  aforesaid,  did  knowingly, 


*  Rex  V.  Hill,  Russell  &  Ryan,  C.  C.  190;  Commonwealth  v.  Morrill,  8 
Gushing,  571  ;  Rex  v.  Adey,  7  Carrington  &  Payne,  140,  141  ;  Britt  v.  The 
State,  9  Humphreys,  31  ;  The  State  v.  Dunlap,  24  Maine,  77  ;  The  State 
V.  Mills,  17  Maine,  211  ;  1  Gabbett,  Crim.  Law,  215. 

*  1  Gabbett,  Crim.  Law,  19;  Archbold,  Crim.  PI.  (London  ed.  1853,)  2. 
The  nature  of  the  attempt  must  be  set  forth  in  the  indictment,  with  rea- 
sonable certainty.  And  where  the  indictment  stated  that  the  defendant 
"  did  unlawfully  attempt  and  endeavor  fraudulently,  falsely,  and  unlawfully 
to  obtain  from  an  insurance  company  a  large  sura  of  money,  to  wit,  the  sum 
of  £22.  10s.,  with  intent  thereby  then  and  there  to  cheat  and  defraud  the 
said  company,"  etc. ;  this  was  held  insufficient.  Regina  v.  Marsh,  1  Denison, 
C.  C.  505  ;  3  Cox,  C.  C.  570  ;  1  Temple  &  Mew,  C.  C.  192. 

'  1  Gabbett,  Crim.  Law,  215. 

*  Matthews,  Crim.  Law,  472.  An  indictment  for  selling  by  false  weights 
and  measui-es  may  readily  be  framed  from  this  precedent. 


96  FALSE  PRETENCES.  [CHAP.  XIV. 

unlawfully,  wilfully,  and  publicly  keep  in  a  certain  shop  there, 
wherein  the  said  C.  D.  did  so  as  aforesaid  carry  on  his  said 
trade  and  business,  a  certain  false  pair  of  scales  for  the  weigh- 
ing of  goods,  wares,  and  merchandises  by  him  sold  and  dis- 
posed of  in  the  way  of  his  said  trade  and  business;  which 
said  scales  were  then  and  there,  by  artful  and  deceitful  ways 
and  means,  so  made  and  constructed  as  to  cause  the  goods, 
wares,  and  merchandises  weighed  therein  and  sold  by  the  said 
C.  D.  as  aforesaid,  to  appear  of  much  greater  weight  than  the 
real  and  true  weight  thereof,  to  wat,  by  one  eighth  part  of 
such  apparent  weight;  and  that  the  said  C.  D.  on  the  said 

first  day  of  June  in  the  year  of  our  Lord ,  at  B.  aforesaid, 

in  the  county  aforesaid,  the  said  C.  D.  then  and  there  well 
knowing  the  said  scales  to  be  false  as  aforesaid,  did  know- 
ingly, wilfully,  and  fraudulently  sell  and  utter  to  one  J.  N.^ 
certain  goods  in  the  way  of  the  said  trade  of  the  said  C.  D., 
to  wit,  a  large  quantity  of  sugar,  weighed  in  and  by  the  said 
false  scales,  as  and  for  twenty  pounds  weight  of  sugar, 
whereas,  in*  truth  and  in  fact,  the  weight  of  the  said  sugar  so 
sold  and  falsely  weighed  as  aforesaid,  was  short  and  deficient 
of  the  said  weight  of  twenty  pounds,  to  wit,  by  one  eighth 
part  of  the  said  weight  of  twenty  pounds,  to  wit,  at  B.  afore- 
said, in  the  county  aforesaid ;  against  the  peace  of  said  Com- 
monwealth. 

2.  Obtaining-  g'oods  b//  false  pretences. 

The  jurors,  etc.,  upon  their  oath  ])resent,  that  C.  D.  late  of  B. 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, feloniously,^  unlawfully,  knowingly,  and  designedly  did 

*  Alleging  the  sale  to  have  been  made  to  "  divers  citizens  to  the  jurors  afore- 
said unknown,"  lias  been  held  to  be  suflicient.  Rex  v.  Gibbs,  1  Strange, 
407.  In  Tennessee,  it  has  liecn  held,  that  it  is  not  suflicient  to  charge  that 
the  sale  v,:in  jna(h>,  to  "divers  persons."  The  person  to  whom  the  sale  was 
nia<l(!,  must  be  named.     'J'lic.  State  v.  Woodson,  5  Humphreys,  65. 

'  'I'ius  averment  is  proper  in  those  of  the  United  States,  where  the  offence 


CHAP.  XIV.]  FALSE  PRETENCES.  97 

falsely  pretend  to  E.  F.  that  the  said  C.  D.  was  then  sent  by 
J.  N.  to  the  said  E.  F.  for  a  silver  tankard,  by  means  of  which 
said  false  pretence  the  said  C.  D.  did  then  and  there  unlaw- 
fully, knowingly,  and  designedly,  fraudulently  obtain  from  the 
said  E.  F.  one  silver  tankard,  of  the  value  of  one  hundred 
dollars,  of  the  goods  and  chattels  of  the  said  E.  F.,  with  intent 
then  and  there  to  cheat  and  defraud  the  said  E.  F.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  said  C.  D.  was 
not  then  and  there  sent  by  the  said  J.  N.  to  the  said  E.  F.  for 
a  silver  tankard,  as  the  said  C.  D.  then  and  there  well  knew ; 
against  the  peace,  etc.,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

3.  For  obtaining  money  on  a  false  representation  respecting  the 
value  and  history  of  a  horse,  which  the  prisoners  sold  to 
the  prosecutor.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 
wit,  at  the  time  of  the  commission  of  the  offence  hereinafter 
in  this  count  mentioned,  one  R.  J.  T.  was  desirous  of  pur- 
chasing and  providing  himself  with  a  horse  which  should  be 
sound  and  quiet  in  harness,  and  that  J.  P.  B^^  late  of  the  par- 
ish of  St.  James,  Westminster,  in  the  county  of  Middlesex, 
and  within  the  jurisdiction  of  the  said  court,  laborer,  and  J.  P. 
late  of  the  same  place,  laborer,  well  knowing  the  premises, 
and  that  the  said  R.  J.  T.  would  be  ready  to  purchase  of  and 
from  any  respectable  and  responsible  person  such  horse  as- 
aforesaid ;  and  the  said  J.  P.  B.  and  J.  P.  having  in  their  pos- 
session a  certain  horse,  much  under  the  value  of  three  hundred 
dollars,  to  wit,  of  the  value  of  one  hundred  dollars  and  no 
more,  and  then  being  unsound,  and  the  said  J.  P.  B.  and  J.  P. 
wickedly  and  fraudulently  intending  to  persuade  the  said  R.  J. 


is  a  felony.     An  indictment  which  alleged  that  the  defendant  unlawfully, 
knowingly,  and  designedly  did  feloniously  pretend,  etc.,  was  held  bad.     Rex 
V.  Walker,  6  Carrlngton  &  Payne,  657. 
'  3  Cox,  C.  C.  Appendix,  p.  xlix. 

9 


98  FALSE  PRETENCES.  [CIIAP.  XIV. 

T.  to  deposit  with  them,  the  said  J.  P.  B.  and  J.  P.,  a  large  sum 
of  money  upon  the  delivery  of  the  said  horse  to  the  said  R. 
J.  T.  for  trial  and  approval  thereof,  and  under  color  of  their 
readiness  and  willingness  to  return  the  said  money,  subject  to 
the  deduction  of  fifty  dollars,  in  case  the  said  horse  should 
not  be  approved  of  by  the  said  R.  J.  T.,  to  cheat  and  defraud 
the  said  R.  J.  T.  of  the  same  money  so  to  be  deposited  as 
aforesaid,  on  the  seventh  day  of  September  in  the  year  of  our 

Lord ,  at  the  parish  aforesaid,  in  the  county  aforesaid, 

and  within  the  jurisdiction  of  the  said  court,  did  produce  the 
said  horse  to  the  said  R.  J.  T.  and  did  then  and  there  unlaw- 
fully, knowingly,  and  designedly,  falsely  pretend  to  the  said 
R.  J.  T.  that  the  said  J.  P.  B.  then  was  in  the  wool  business 
in  the  city  of  London ;  that  the  said  horse  then  belonged 
to  a  brother  of  the  said  J.  P.  B.  then  abroad  ;  that  the  said 
J.  P.  B.  then  had  to  sell  the  said  horse  for  his  said  brother ; 
that  the  said  horse  was  then  perfectly  sound  and  quiet  in  har- 
ness, and  had  then  been  used  to  run  with  another  horse  in 
harness,  which  had  been  sold  to  a  colonel.  By  means  of 
which  said  false  pretences  the  said  J.  P.  B.  and  J.  P.  did  then 
and  there  unlawfully,  knowingly,  and  designedly,  fraudulently 
obtain  of  and  frym  the  said  R,  J.  T.  one  piece  of  paper  of  the 
value  of  one  cent,  of  the  goods  and  chattels  of  the  said  R.  J. 
T.,  and  one  order  for  the  payment  of  money,  to  wit,  for  the 
payment  of  the  sum  of  three  hundred  dollars,  and  of  the  value 
of  three  hundred  dollars,  then  being  the  property  of  the  said 
R.  J.  T.  with  intent  then  and  there  to  cheat  and  defraud  him  of 
the  said  goods,  chattels,  and  order  respectively,  the  said  sum  of 
money  payable  and  secured  by  and  upon  the  said  order  being 
then  due  and  unsatisfied  to  the  said  R,  J.  T.  the  proprietor  of 
the  said  order  ;  whereas,  in  truth  and  in  fact,  the  said  J.  P.  B. 
was  not  then  in  the  waiol  trade  in  the  city  of  London  ;  and 
wlicrcjis,  in  Iriitli  iind  in  fact,  ilie  said  horse  did  not  belong  to 
a  l)rother  of  the  said  .1.  P.  H.  who  was  abroad;  and  wlicreas, 
in  truth  and  in  fact,  tlic  said  .1.  P.  H.  had  not  then  to  sell  the 
said  horse  for  his  said  supposed  brother;  and  whereas,  in 
truth  and  in  fa(;t,  the  said  jjorse  was  not  then  sound  or  (juiet 
in  harness,  and  had  not  then  been  used  to  run  with  another 


CHAP.  XIV.]  FALSE   PRETEXCES.  99 

horse  which  had  been  sold  to  a  colonel ;  all  of  which  said 
false  pretences  the  said  J.  P.  B.  and  J.  P.  at  the  time  of  mak- 
ing thereof  as  aforesaid,  well  knew  to  be  false ;  to  the  great 
damage  and  deception  of  the  said  R.  J.  T.,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  J.  P.  B.  and  J.  P. 
well  knowing  as  in  the  first  count  mentioned,  and  having  in 
their  possession  the  said  horse  in  the  first  count  mentioned, 
and  being  persons  of  no  credit  or  responsibility,  but  of  fraudu- 
lent and  deceitful  minds  and  dispositions,  and  intending  to 
cause  it  to  appear  to,  and  be  believed  by,  the  said  R.  J.  T.  that 
the  said  J.  P.  B.  was  a  person  of  substance  and  of  good  credit, 
and  was  a  bond  fide  seller  of  the  said  horse  for  another,  and  a 
respectable  party,  and  was  a  responsible  person,  whose  war- 
ranty of  the  said  horse  was  of  value,  and  would  be  available 
to  any  purchaser  of  the  said  horse,  and  to  induce  the  said  R. 
J.  T.  to  purchase  the  said  horse  of  the  said  J.  P.  B.  and  J.  P. 
upon  the  faith  and  credit  of  the  warranty  of  the  said  horse  by 
the  said  J.  P.  B.  as  such  responsible  party,  for  a  large  sum  of 
money,  to  wit,  the  sum  of  three  hundred  dollars,  and  to  cheat 
and  defraud  the  said  R.  J.  T,  of  the  same,  and  afterwards,  to 
w^it,  on  the  same  day  and  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  did  produce  the  said  horse  to  the  said  R.  J.  T. 
and  offer  to  sell  the  same  to  the  said  R.  J.  T.,  to  wit,  for  the 
sum  of  three  hundred  dollars,  with  a  warranty  by  the  said 
J.  P.  B.  of  the  said  horse  being  then  sound  and  quiet  in  har- 
ness; and  the  said  J.  P.  B.  and  J.  P.  did  then  and  there 
deliver  such  warranty  as  aforesaid  to  the  said  R.  J.  T.,  and 
did  then  and  there  unlawfully,  knowingly,  and  designedly, 
falsely  pretend  to  the  said  R.  J.  T.  that  the  said  J.  P.  B.  then 
was  in  the  wool  business  in  the  city  of  London,  that  the  said 
horse  then  belonged  to  a  brother  of  the  said  J.  P.  B.  who  was 
then  abroad,  and  that  the  said  J.  P.  B.  then  had  to  sell  the 
said  horse  for  his  said  brother,  by  means  of  which  said  false 
pretences,  in  this  count  mentioned,  the  said  J.  P.  B.  and  J.  P. 


100  FALSE  PRETENCES.  [CHAP.  XIV. 

did,  then  anci  there  unlawfully,  knowingly,  and  designedly, 
fraudulently  obtain  of  and  from  the  said  R.  J.  T.  one  piece  of 
paper  of  the  value  of  one  cent,  of  the  goods  and  chattels  of 
the  said  E..  J.  T.,  and  one  order  for  the  payment  of  money,  to 
wit,  for  the  payment  of  the  sum  of  three  hundred  dollars,  then 
being  the  property  of  the  said  R.  J.  T.,  with  intent  then  and 
there  to  cheat  and  defraud  the  said  R.  J.  T.  of  the  said  last-men- 
tioned goods,  chattels,  and  order  respectively,  the  said  sum  of 
money  payable  and  secured  by  and  upon  the  said  last-men- 
tioned order,  being  then  due  and  unsatisfied  to  the  said  R.  J.  T. 
the  proprietor  thereof;  whereas,  in  truth  and  in  fact,  the  said 
J.  P.  B.  was  not  then  in  the  wool  business  in  the  city  of  Lon- 
don, nor  did  the  said  horse  belong  to  a  brother  of  the  said 
J.  P.  B,  who  was  then  abroad ;  and  whereas,  in  truth  and  in 
fact,  the  said  J.  P.  B.  had  not  then  to  sell  the  said  horse  for 
his  said  supposed  brother  ;  all  of  which  said  several  false  pre- 
tences, in  this  count  mentioned,  the  said  J.  P.  B.  and  J.  P.  at 
the  time  of  the  making  thereof  as  aforesaid  knew  to  be  false  ; 
to  the  great  damage  and  deception  of  the  said  R.  J.  T.,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace,  etc. 

4.  For  obtaining  money  by  falsely  pretending  that  certain  prop- 
erty of  the  defendant  was  unincumbered,  and  that  he  him- 
self was  free  from  debts  and  liabilities} 

The  jurors,  etc.,  upon  their  oath  present,  that  before  the 
commission  of  the  ofl'cnce  hereinafter  mentioned,  one  R.  H. 
C.  was  possessed  of  and  entitled  to  a  certain  reversionary 
interest,  to  wit,  a  certain  reversionary  interest  of  and  in 
and  to  one  third  of  a  certain  sum  of  ten  thousand  dollars, 
throe  per  cent,  annuities,  expectant  on  the  death  of  one 
R.  (•.,  Mild  llial,  Ihe  said  R.  IT.  C.  before  the  commission 
of  llie  onciice  hereiiiarter  mentioned,  to  wit,  on  the  first  day 

of  Novciiihcr,  in  the  year  of  our  Lord  ,  duly  executed 

u  ccrtuiii   mortgage  of  the  said  reversionary  interest  to  one 

'  5  Cox,  C.  C.  Appendix,  p.  xc. 


CHAP.  XIV.]  FALSE   PRETENCES.  101 

R.  S.  11.  H.,  as  and  for  and  by  the  way  of  security  to  the 
said  R.  S.  H.  H.,  for  the  repayment  to  him  of  a  certain 
sum  of  money,  to  wit,  the  sum  of  one  thousand  dollars  and 
interest,  and  that  the  said  R.  H.  C.  afterwards,  and  before  the 
commission  of  the  said  ofi'ence,  to  wit,  on  the  twenty-fifth  day 

of  October,  in  the  year  of  our  Lord  ,  charged  the  said 

reversionary  interest,  to  which  he  was  so  entitled  as  aforesaid, 
with  the  payment  of  a  certain  other  sum  of  money,  to  wit, 
the  sum  of  five  hundred  dollars  and  interest.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  R.  H.  C.  late  of  the  parish  of  Saint  Pancras,  in  the 
county  of  Middlesex,  gentleman,  well  knowing  the  premises, 
and  contriving  and  intending  to   cheat  and  defraud,  on  the 

thirteenth  day  of  March,  in  the  year  of  our  Lord ,  at  the 

parish  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
did  apply  to  and  request  one  J.  P.  to  advance  and  lend  to 
him,  the  said  R.  H.  C,  a  certain  sum  of  money,  to  wit,  the 
sum  of  two  hundred  dollars,  and  did  then  and  there  unlaw- 
fully and  knowingly  falsely  pretend  to  the  said  J.  P.  that  the 
said  R.  H.  C.  had  not  then  incumbered  his  said  reversionary 
interest,  and  that  the  said  R.  H.  C.  had  not  borrowed  any 
money  from  any  other  person  on  the  security  of  the  said 
reversionary  interest  of  the  said  R.  H.  C. ;  by  means  of  which 
said  false  pretences,  the  said  R.  H.  C.  did  then  and  there 
unlawfully,  knowingly,  and  designedly,  fraudulently  obtain  of 
and  from  the  said  J.  P.  one  order  for  the  payment  of  money, 
to  wit,  for  the  payment  and  of  the  value  of  two  hundred  dol- 
lars, and  one  piece  of  paper,  of  the  value  of  one  cent,  and  the 
sum  of  two  hundred  dollars  in  money,  of  the  property,  goods, 
chattels,  and  moneys  of  the  said  J.  P.,  with  intent  then  and 
there  to  cheat  and  defraud  him  of  the  same;  whereas, in  truth 
and  in  fact,  the  said  R.  H.  C,  at  the  time  he  so  falsely  pre- 
tended, as  aforesaid,  had  incumbered,  and  well  knew  that  he 
had  incumbered,  his  said  reversionary  interest ;  and  whereas, 
in  truth  and  in  fact,  the  said  R.  H.  C,  at  the  time  he  so  falsely, 
pretended  as  aforesaid,  had  borrowed  and  well  knew  that  he 
had  borrowed,  certain  money  from  certain  persons,  other  than 
the  said  J.  P.,  upon  the  security  of  the  said  reversionary  inter- 

9* 


102  FALSE  PRETENCES.  [CHAP.  XIV. 

est,  to  wit,  the  said  sum  of  one  thousand  dollars,  of  and  from 
the  said  R.  S.  H.  H.,  and  the  said  other  sum  of  five  hundred 
dollars  of  and  from  one  J.J. ;  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  R.  H.  C.  being  pos- 
sessed of  and  entitled  to  a  reversionary  interest  in  a  certain 
sum  of  ten  thousand  dollars,  three  per  cent,  annuities,  expect- 
ant upon  the  decease  of  one  R.  C,  did  apply  to  and  request 
the  said  J.  P.  to  advance  and  lend  money  to  him  the  said  R. 
H.  C,  to  wit,  on  the  thirty-first  day  of  May  in  the  year  of  our 

Lord ,  at  the  parish  aforesaid,  and  within  the  jurisdiction 

of  the  said  court,  and  did  then  and  there  unlawfully,  know- 
ingly, and  designedly,  falsely  pretend  to  the  said  J.  P.  that  the 
said  R.  H.  C.  had  never  in  any  manner  theretofore  mortgaged, 
assigned,  or  incumbered  his  reversionary  interest  in  the  said 
ten  thousand  dollars,  three  per  cent,  armuities,  or  any  part 
thereof;  that  the  said  R.  H.  C.  had  never  been  a  party  to  any 
deed  or  instrument  whereby  his  interest  in  the  said  stock  had 
or  could  have  been  in  any  manner  affected;  that  the  said  R. 
H.  C.  was  not  then  liable  on  any  deed  or  instrument  as  surety 
for  any  person  whomsoever;  that  the  said  R.  H.  C.  had  not 
then  borrowed  any  money  whatsoever,  except  from  the  said 
J.  P.,  and  that  the  said  R.  H.  C.  did  not  then  owe,  and  was 
not  then  liable  for  a  greater  amount  of  debts,  exclusive  of  a 
sum  of  four  hundred  dollars,  which  he  then  owed  to  the  said 
J.  P.,  than  the  sum  of  three  hundred  dollars ;  by  means  of 
which  said  false  pretences,  in  this  count  mentioned,  the  said 
R.  II.  C.  did  then  and  there  unlawfully,  knowingly,  and 
designedly,  fraudulently  obtain  of  and  from  the  said  J.  P.  one 
order  for  the  payment  of  money,  to  wit,  for  the  payment  and 
of  tiie  value  of  the  sum  of  fifty  ch)lhirs,  and  one  piece  of  paper 
of  the;  vahie  of  one  cent, and  the  sum  of  fifty  dollars  in  money 
of  the  i)r()p('r1y,  goods,  ciiattels,  and  moneys  of  the  said  J.  P. 
willi  intent  lo  cheat  and  defraud  him  of  the  same;  whereas, 
in  trulh  and  in  fact,  at  the  time  the  said  R.  H.  C.  so  falsely 
pretended  as  last  aforesaid,  he  had  mortgaged,  assigned,  and 
inciinihen^d  his  said  reversionary  interest  in  the  said  sum  of 


CHAP.  XIV.]  FALSE   PRETENCES.  103 

ten  thousand  dollars,  three  per  cent,  annuities,  to  wit,  the  said 
R.  S.  H.  H.  and  J.  J.,  for  the  purpose  of  securing  to  them 
respectively  the  repayment  of  the  said  sums  of  one  thousand 
dollars  and  five  hundred  dollars  hereinbefore  mentioned ; 
and  whereas,  in  truth  and  in  fact,  at  the  time  the  said  R.  H.  C. 
so  falsely  pretended  as  last  aforesaid,  the  said  R.  H.  C.  had 
been,  and  then  was,  a  party  to  certain  deeds,  by  which  his 
said  reversionary  interest  in  the  said  sum  of  ten  thousand 
dollars  had  been  and  was  then  affected,  to  wit,  the  said  deeds 
by  which  the  repayment  of  the  said  sums  of  one  thousand 
dollars  and  five  hundred  dollars  was  charged  upon  his  said 
reversionary  interest;  and  whereas,  in  truth  and  in  fact,  at  the 
time  the  said  R.  H.  C  so  falsely  pretended  as  in  this  count 
aforesaid,  the  said  R.  H.  C.  was  liable  on  certain  bonds  as 
surety  for  certain  persons,  to  wit,  one  M.  S.  and  one  E.  J.,  to 
wit,  in  two  several  sums  of  fifteen  thousand  dollars;  and 
whereas,  in  truth  and  in  fact,  at  the  time  the  said  R.  H.  C.  so 
falsely  pretended  as  in  this  count  mentioned,  the  said  R.  H.  C. 
had  borrowed  certain  sums  of  money  from  certain  persons 
other  than  the  said  J.  P.,  to  wit,  the  sum  of  five  thousand  dol- 
lars from  the  said  R.  S.  H.  H.  and  the  sum  of  three  thousand 
dollars  from  the  said  J.  J. ;  and  whereas,  in  truth  and  in  fact, 
at  the  time  the  said  R.  H.  C.  so  falsely  pretended  as  aforesaid, 
the  said  R.  H.  C.  did  owe,  and  was  then  liable  for  a  greater 
amount  of  debts  than  the  sum  of  three  hundred  dollars,  ex- 
clusive of  any  money  which  he  then  owed  to  said  J.  P.,  that 
is  to  say,  the  said  R.  H.  C.  then  owed  to  the  said  R.  S.  H.  H. 
a  greater  sum  of  money  than  the  sum  of  three  hundred  dol- 
lars, to  wit,  the  sum  of  six  hundred  dollars,  and  the  said  R. 
H.  C.  then  owed  to  the  said  J.  J.  a  greater  sum  of  money 
than  the  said  sum  of  three  hundred  dollars,  to  wit,  the  sum  of 
six  hundred  dollars,  all  which  said  several  premises  the  said 
R.  H.  C.  at  the  time  he  so  falsely  pretended  as  aforesaid,  well 
knew ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 


104  FALSE    PRETENCES.  [CIIAI'.  XIV. 

5.  Against  a  defendant  for  obtaining  money  by  fahehj  pretend- 
ing that  he  It  ad  then  purchased  certain  property^  vjhich  it 
IV as  necessary  he  should  immediately  pay  for?- 

The  jurors,  etc.,  upon  their  oath  present,  that  W.  J.  late  of 
the  parish  of  Christchurch,  Newgate  Street,  in  the  city  of 
London,  laborer,  on  the  first  day  of  March  in  the  year  of  our 

Lord ,  at  the  parish  aforesaid,  in  the  city  aforesaid,  and 

within  the  jurisdiction  of  the  said  court,  did  unlawfully,  fraudu- 
lently, knowingly,  and  designedly,  falsely  pretend  to  one  S.  N. 
that  the  said  W.  J.  then  had  at  a  certain  place  then  called 
and  known  by  the  name  of  Dixon's  Liars,  to  wit,  at  Dixon's 
Liars,  at  Islington,  in  the  county  of  Middlesex,  and  within 
the  jurisdiction  of  the  said  court,  one  hundred  and  eight  sheep, 
which  the  said  W.  J.  had  then  purchased,  and  for  which  said 
one  hundred  and  eight  sheep  the  said  W.  J.  had  then  and 
there  to  pay  on  the  said  first  day  of  March,  to  wit,  on  the  day 
and  year  aforesaid,  and  within  the  jurisdiction  aforesaid,  by 
means  of  which  said  false  pretences  the  said  W.  J.  did  then 
and  there,  and  within  the  jurisdiction  aforesaid,  unlawfully, 
knowingly,  and  designedly,  fraudulently  obtain  of  and  from 
the  said  S.  N.  of  the  goods,  chattels,  moneys,  and  valuable 
securities  of  the  said  S.  N.  ten  pieces  of  the  current  gold  coin 
of  this  realm,  called  sovereigns,  one  valuable  security,  to  wit, 
an  order  for  the  payment  of,  and  of  the  value  of  one  hundred 
dollars ;  one  other  valuable  security,  to  wit,  one  other  order 
for  the  payment  of,  and  of  the  value  of  five  hundred  dollars  ; 
one  other  valuable  security,  to  wit,  one  other  order  for  the  pay- 
ment of  money,  to  wit,  one  other  order  for  the  payment  of, 
and  of  ihe  value  of  four  hundred  dollars;  one  oilier  valuable 
security,  to  wit,  one  other  order  for  the  payment  of  money,  to 
wit,  oiK!  other  order  for  the  paynieiit  of,  and  of  the  value  of 
three  hiiiKlrtd  dolhirs;  and  one  oilier  valuable  security,  to 
wit,  one  oilier  order  for  the  payment  of  money,  to  wit,  one 
other  Older  for  the  pavnient  of,  and  of  the  value  of  six  hun- 
dred dollars  ;  with  intent  then  and  there,  and  within  the  juris- 

'  4  Cox,  C.  C.  Api)cn(lix,  p.  xxxiii. 


CHAP.  XIV.]  FALSE  PRETENCES.  105 

diction  aforesaid,  to  cheat  and  defraud  the  said  S.  N.  of  the 
same  goods,  chattels,  moneys,  valuable  securities,  and  orders 
for  the  payment  of  money  respectively,  the  said  sums  of  money 
payable  and  secured  by  and  upon  the  said  valuable  securities 
and  orders  for  the  payment  of  money,  being  then  and  there 
due  and  unsatisfied  to  the  said  S.  N.  the  proprietor  and  owner 
of  the  said  several  valuable  securities  and  orders  for  the  pay- 
ment of  money  respectively  ;  whereas,  in  truth  and  in  fact,  the 
said  W.  J.  had  not  at  the  time  when  the  said  W.  J,  so  obtained 
the  said  moneys,  and  the  said  several  valuable  securities  and 
orders  for  the  payment  of  money  from  the  said  S.  N.  as  afore- 
said, and  when  the  said  W.  J.  made  the  said  false  pretences 
as  aforesaid,  one  hundred  and  eight  sheep  at  Dixon's  Liars, 
at  Islington  ;  and  whereas,  in  truth  and  in  fact,  the  said  W.  J. 
had  not  then  purchased  the  said  one  hundred  and  eight  sheep ; 
and  whereas,  in  truth  and  in  fact,  the  said  W.  J.  had  not  then 
to  pay  for  the  said  one  hundred  and  eight  sheep,  to  wit,  on 
the  said  fkst  day  of  March ;  all  of  which  said  false  pretences 
the  said  W.  J.  at  the  time  of  the  making  thereof  well  knew  to 
be  false ;  to  the  great  damage,  injury,  and  deception  of  the 
said  S.  N.,  and  in  fraud  of  the  said  S.  N.,  to  the  evil  example 
of  all  others  in  the  like  case  offending,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  N.  heretofore,  to 
wit,  on  the  day  and  year  aforesaid,  and  wdthin  the  jurisdic- 
tion aforesaid,  was  accustomed  to,  and  from  time  to  time  and 
at  various  times  did,  at  the  request  of  the  said  W.  J.  advance 
and  intrust  divers  sums  of  moneys  to  the  said  W.  J.  for  the 
purpose  of,  and  to  enable  the  said  W.  J.  to  pay  for  sheep, 
after  the  said  W.  J.  had,  in  the  way  of  his  trade,  purchased 
the  same.  And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that  the  said  W.  J.  heretofore,  to  wit,  on 
the  said  first  day  of  March,  in  the  year  aforesaid,  in  the 
city  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
well  knowing  the  premises,  did  unlawfully,  fraudulently, 
knowingly,  and  designedly,  falsely  pretend  to  the  said  S.  N. 


106  FALSE    PRETENCES.  [CIIAP.  XIV. 

that  the  said  W.  J.  had  theretofore  and  before  the  making  the 
false  pretences  by  the  said  W.  J.  hereinafter  in  this  count 
mentioned,  purchased  for  himself  a  certain  number  of  sheep, 
of  a  certain  value,  to  wit,  of  the  value  of  five  hundred  dollars, 
for  which  the  said  W.  J.  had  to  pay  at  the  bank  of  Messieurs 
Pockington  and  Company  on  the  day  and  year  last  aforesaid, 
a  certain  sum  of  money,  to  wit,  the  sum  of  five  hundred  dol- 
lars, by  means  of  which  last-mentioned  false  pretences  in  this 
count  mentioned,  the  said  W.  J.  did  then  and  there,  and 
within  the  jurisdiction  aforesaid,  unlawfully,  knowingly,  and 
designedly,  fraudulently  obtain  of  and  from  the  said  S.  N.  of 
the  goods  and  chattels,  moneys  and  valuable  securities  of  the 
said  S.  N.  one  valuable  security,  to  wit,  one  order  for  the  pay- 
ment of  money,  to  wit,  one  order  for  the  payment  of  and  of 
the  value  of  five  hundred  dollars,  with  intent  then  and  there, 
at  the  time  of  the  making  of  the  said  false  pretences  by  the 
said  W.  J.  in  this  count  mentioned,  and  within  the  jurisdic- 
tion of  the  said  court,  to  cheat  and  defraud  the  said  S.  N.  of 
the  said  valuable  security  and  order  for  payment  of  money  in 
this  count  mentioned,  the  said  sums  of  money  in  this  count 
payable,  and  secured  by  and  upon  the  said  valuable  security 
and  order  for  the  payment  of  money  in  this  count  mentioned, 
being  then  and  there,  to  wit,  at  the  time  of  the  making  of  the 
said  last-mentioned  false  pretences,  due  and  unsatisfied  to  the 
said  S.  N.  the  proprietor  and  owner  of  the  same ;  whereas,  in 
truth  and  in  fact,  the  said  W.  J.  had  not  theretofore,  and 
before  the  making  of  the  said  false  pretences  by  the  said 
W.  J.  in  this  count  mentioned,  purchased  for  himself  a  certain 
number  of  sheep,  of  the  value  of  five  hundred  dollars,  for 
which  the  said  W.  J.  had  to  pay  at  the  bank  of  Messieurs 
Pockington  and  Company  on  the  day  and  year  last  aforesaid, 
and  in  this  count  mentioned,  the  said  sum  of  five  hundred  dol- 
lars, which  said  last-mentioned  false  pretences  the  said  W.  J. 
at  tlie  time  of  the  making  thereof  well  kncnv  to  be  false  ;  to  the 
great  damage,  injury,  and  dece])lion  of  the  said  S.  N.,  and  in 
fraud  (if  th<'  s;il(l  S.  N.,  1o  ihc  evil  cxaiiiplc  of  all  olhers  in 
the  liUc  case  oliciidiiig;  contrary  to  the  slalult;  in  that  case 
made  and  provided,  and  against  the  peace,  etc. 


QIIAP.  XIV.]  FALSE   PRETEXCES.  107 

6.  For  obtaining'  money  hij  tlie  false  pretence  on  the  part  of  the 
defendant  J  that  he  was  entitled  to  grant  a  lease  of  certain 
freehold  property.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  P.  F.  late  of 
B.  in  the  county  of  Middlesex,  laborer,  on  the  first  day  of 

June  in  the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the 

county  aforesaid,  and  within  the  jurisdiction  of  the  Central 
Criminal  Court,  unlawfully  and  knowingly  did  falsely  pretend 
to  one  B.  E.  that  the  said  P.  F.  then  was  the  freeholder  of  a 
certain  messuage  and  premises  situate  and  being  in  Church 
Street,  in  B.  aforesaid,  in  the  county  aforesaid,  and  that  the 
said  P.  F.  then  had  a  good  and  sufficient  right,  title,  estate, 
and  interest  in  the  said  messuage  and  premises  to  entitle  and 
enable  the  said  P.  F.  to  grant  to  the  said  B.  E.  a  lease  of  the 
said  messuage  and  premises  for  a  term  of  twenty  years,  and 
that  the  said  P.  F.  then  had  power  to  grant  the  said  lease  to 
the  said  B.  E.,  and  to  give  to  the  said  B.  E.  a  good  and  valid 
title  to  the  said  messuage  and  premises  for  the  said  term  of 
twenty  years,  by  means  of  which  said  false  pretences  the  said 
P.  F.  did  then  and  there  unlawfully  and  fraudulently  obtain 
from  the  said  B.  E.  thirty  pieces  of  the  current  gold  coin  of 
this  realm  called  sovereigns,  ten  pieces  of  the  current  silver 
coin  of  this  realm  called  shillings,  and  one  promissory  note  of 
the  governor  and  company  of  the  Bank  of  England,  for  the 
payment  of  ten  pounds,  of  the  moneys  of  the  said  B.  E.,  with 
intent  then  and  there  to  cheat  and  defraud  him  of  the  same  ; 
whereas,  in  truth  and  in  fact,  the  said  P.  F.  was  not  at  the 
time  he  so  falsely  pretended  as  aforesaid,  the  freeholder  of  the 
said  messuage  and  premises,  or  of  any  part  thereof,  nor  had 
he  then  any  freehold  estate  whatever  in  the  said  messuage 
and  premises,  or  in  any  part  thereof,  as  the  said  P.  F.  then  well 
knew ;  and  whereas,  in  truth  and  in  fact,  the  said  P.  F.  had 
not  at  the  time  he  so  falsely  pretended  as  aforesaid  a  sufficient 
right,  title,  estate,  or  interest  to  entitle  or  enable  him  to  grant 
any  lease  of  the  said  messuage  and  premises  for  a  term  of 

^  5  Cox,  C.  C.  Appendix,  p.  li. 


108  FALSE  PRETENCE?.  [cHAP.  XIV^ 

twenty  years,  or  any  lease  whatever  of  the  said  messuage  and 
premises,  or  any  part  thereof,  as  the  said  P.  F.  then  well 
knew;  and  whereas,  in  truth  and  in  fact,  the  said  P.  F.  had 
not  at  the  time  he  so  falsely  pretended  as  aforesaid  any  right, 
title,  estate,  or  interest  whartever  in  or  to  the  said  messuage 
and  premises,  nor  had  he  then  power  to  grant  the  said  lease 
to  the  said  B.  E.,  or  to  give  to  the  said  B.  E.  any  title  to  the 
said  messuage  and  premises  for  the  said  term  of  twenty 
years,  or  for  any  term  of  years  whatever,  or  any  title  what- 
ever to  the  said  messuage  and  premises,  or  any  part  thereof; 
to  the  great  damage  of  the  said  B.  E.,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  and  at  the  time 
of  the  committing  of  the  offence  hereinafter  next  mentioned, 
one  J.  L.  was  the  owner  and  proprietor  of  the  said  messuage 
and  premises  in  the  said  first  count  of  this  indictment  men- 
tioned. And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  P.  F.  on  the  day  aforesaid, 
in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  aforesaid,  unlawfully  and  know- 
ingly did  again  falsely  pretend  to  the  said  B.  E.  that  the  said 
P.  F.  then  was  the  freeholder  of  the  said  messuage  and  prem- 
ises, and  that  the  old  gentleman  to  whom  the  premises  for- 
merly belonged,  meaning  the  said  J.  L.  had  died,  and  had 
left  the  said  P.  F.  every  thing,  and  that  the  said  P.  F.  then 
had  a  sufficient  estate  and  interest  in  the  said  messuage  and 
premises  to  entitle  and  enable  him  to  grant,  and  then  had 
power  to  grant  to  the  said  B.  E.  a  lease  of  the  said  messuage 
and  premises  for  a  term  of  ninety  years,  by  means  of  which 
said  false  j)rctences  in  this  count  mentioned,  the  said  P.  F. 
did  then  and  there  unlawfully  and  fraudulently  obtain  from 
the  said  B.  E.  thirty  ))jeces  of  the  current  gold  coin  of  this 
reahn  culled  sovereigns,  ten  pieces  of  the  current  silver  coin  of 
this  realm  called  shillings,  and  oik;  i)romissory  note  of  the  gov- 
ernor and  company  of  the  Bank  of  England,  for  the  payment 


CHAP.  XIV.]  FALSE   PRETENCES.  109 

of  ten  pounds  of  the  moneys  of  the  said  B.  E.,  with  the  intent 
then  and  there  to  cheat  and  defraud  him  of  the  same  ;  whereas, 
in  truth  and  in  fact,  the  said  P.  F.  was  not  at  the  time  he  so 
falsely  pretended,  as  in  this  count  mentioned,  the  freeholder 
of  the  said  messuage  and  premises,  or  any  part  thereof,  nor 
had  he  then  any  freehold  estate  in  the  said  messuage  and 
premises,  or  in  any  part  thereof,  as  the  said  P.  F.  then  well 
knew;  and  whereas,  in  truth  and  in  fact,  at  the  time  the  said 
P.  F.  so  falsely  pretended  as  last  aforesaid,  the  said  J.  L.  had 
not  died,  as  the  said  P.  F.  then  well  knew ;  and  whereas,  in 
truth  and  in  fact,  the  said  P.  F.  had  not  at  the  time  he  so 
falsely  pretended  as  last  aforesaid,  a  sufficient  estate  or  inter- 
est in  the  said  messuage  and  premises  to  entitle  or  enable 
him  to  grant,  nor  had  he  then  any  power  to  grant  any  lease 
for  a  term  of  twenty  years,  or  any  lease  whatever  of  the  said 
messuage  and  premises,  or  of  any  part  thereof,  as  the  said 
P.  F.  then  and  there  well  knew ;  to  the  great  damage  of  the 
said  B.  E.,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace,  etc. 

7.  For  ohtainirif^  money  by  falsely  pretending  that  the  defend- 
ant ivas  the  authorized  agent  of  the  Executive  Commiltee 
of  the  Exhibition  of  the  Works  of  Industry  of  all  Nations^ 
and  that  he  had  poiver  to  allot  space  to  private  individuals 
for  the  exhibition  of  their  merchandise} 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore 
and  before  the  committing  of  the  offence  hereinafter  next 
mentioned,  to  w^it,  on  the  twenty-fifth  day  of  October  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  an 
application  was  made  by  Harriet  Richardson,  then  being  the 
wife  of  Thomas  Richardson,  to  one  Adam  Young  the 
younger,  for  a  certain  space,  to  wit,  a  space  of  four  feet 
square,  in  a  certain  building  then  in  the  course  of  erection  in 
Hyde  Park,  in  the  county  of  Middlesex,  for  the  purpose  of  an 
exhibition  intended  to  take  place  in  the  year  of  our  Lord  one 

*  4  Cox,  C.  C.  Appendix,  p.  xlv. 
10 


110  FALSE  PRETENCES.  [CHAP.  XIV. 

thousand  eight  hundred  and  fifty-one,  and  called  and  known 
as  the  Great  Exhibition  of  the  Works  of  Industry  of  all 
Nations,  for  the  purpose  of  enabling  the  said  Harriet  Richard- 
son to  exhibit  certain  articles,  to  wit,  stays,  at  the  said  exhibi- 
tion. And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  Adam  Young  the  younger,  late 
of  the  parish  of  Saint  Dunstan  in  the  East,  in  the  city  of 
London,  laborer,  afterwards,  to  wit,  on  the  day  aforesaid,  in 
the  year  aforesaid,  at  the  parish  aforesaid,  in  the  city  afore- 
said, and  within  the  jurisdiction  of  the  Central  Criminal 
Court,  unlawfully,  knowingly,  and  designedly,  did  falsely  pre- 
tend to  the  said  Harriet  Richardson,  that  the  said  Adam 
Young  the  younger,  then  was  an  authorized  agent  for  the  pur- 
pose of  granting  space  for  the  exhibition  of  articles  at  the 
said  Exhibition.  And  that  the  said  Adam  Young  the  younger, 
then  was  the  only  person  who  had  the  power  to  grant  space 
to  the  said  Harriet  Richardson,  for  the  exhibition  of  articles 
at  the  said  Exhibition.  And  that  the  said  Adam  Young  the 
younger,  then  had  power  to  grant  to  the  said  Harriet  Richard- 
son the  said  space  so  applied  for  by  the  said  Harriet  Richard- 
son as  aforesaid,  by  means  of  which  said  false  pretences  the 
said  Adam  Young  the  younger  did  then  and  there  unlawfully 
obtain  from  the  said  Harriet  Richardson  three  pieces  of  the 
current  silver  coin  of  this  realm  called  half-crowns,  two  pieces 
of  the  current  silver  coin  of  this  realm  called  shillings,  and 
one  j)iece  of  the  current  silver  coin  of  this  realm  called  a  six- 
pence, of  the  moneys  of  the  said  Thomas  Richardson,  with 
intent  then  and  tlu're  to  cheat  and  defraud  the  said  Thomas 
Richardson  of  the  same ;  whereas,  in  truth  and  in  fact,  the 
said  Adam  Young  the  younger  was  not  then  an  authorized 
agent  for  the  purpose  of  granting,  and  had  not  any  authority 
whatever  to  grant  space  for  the  exhibition  of  articles  at  the 
said  Exliibition,  or  any  space  whatever  in  the  said  building, 
as  the  said  Adam  Young  the  younger  then  and  there  well 
knew;  and  whereas,  in  truth  and  in  fact,  the  said  Adam 
^'oung  llic  younger  was  not  llicu  the  only  jx-rson  wiio  had 
power  to  grant  space  for  tlu;  (•xhil)ition  of  articles  at  the 
said  Exhibition,  as  the  said   Adam  Young  the  younger  then 


CHAP.  XIV.]  FALSE  TRETENCES.  Ill 

and  there  well  knew.  And  whereas,  in  truth  and  in  fact, 
the  said  Adam  Young  the  younger  had  not  then  any  power, 
authority,  or  right  whatever  to  grant  space  for  the  exhibition 
of  articles  at  the  said  Exhibition  to  the  said  Harriet  Richard- 
son, or  to  any  other  person  whatever,  or  any  space  whatever 
in  the  said  building  to  the  said  Harriet  Richardson,  or  any 
other  person,  as  the  said  Adam  Young  the  younger  then  and 
there  well  knew ;  to  the  great  damage  of  the  said  Thomas 
Richardson,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore,  and  before  the 
committing  of  the  offence  hereinafter  next  mentioned,  to  wit, 
on  the  day  aforesaid,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty,  an  application  was  made  by  the  said 
Harriet,  the  wife  of  the  said  Thomas  Richardson,  to  the  said 
Adam  Young  the  younger,  for  a  certain  space,  to  wit,  a  space 
of  four  feet  square  at  the  Great  Exhibition,  meaning  thereby 
a  space  of  four  feet  square  in  a  certain  building,  intended  to 
be  used  as  the  building  in  which  a  certain  exhibition,  called 
and  known  as  the  Great  Exhibition  of  the  Works  of  Industry 
of  all  Nations,  should  take  place,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty-one,  for  the  exhibition  of 
certain  articles,  to  wit,  stays,  at  the  said  Exhibition.  And  the 
jurors  aforesaid  do  further  present,  that  the  said  Adam  Young 
the  younger  afterwards,  to  wit,  on  the  day  aforesaid,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  at  the 
parish  aforesaid,  in  the  city  aforesaid,  and  within  the  jurisdic- 
tion of  the  Central  Criminal  Court,  unlawfully,  knowingly, 
and  designedly,  did  again  falsely  pretend  to  the  said  Harriet 
Richardson,  that  the  said  Adam  Young  the  younger,  then 
had  power  to  grant  to  the  said  Harriet  Richardson  space 
for  the  exhibition  of  articles  at  the  said  Exhibition.  And  that 
the  said  Adam  Young  the  younger  then  had  power  to  grant 
to  the  said  Harriet  Richardson,  the  said  space  so  applied  for 
by  the  said  Harriet  Richardson  as  *  aforesaid,  by  means  of 
which  said  last-mentioned  false  pretences  the  said  Adam 
Young  the  younger  did  then  and  there  unlawfully  obtain 


112  FALSE   PRETENCES.  [CHAP.  XIV. 

from  the  said  Harriet  Richardson  three  other  pieces  of  the 
current  silver  coin  of  this  reahn  called  half-crowns,  two  other 
pieces  of  the  current  silver  coin  of  this  realm  called  shillings, 
and  one  other  piece  of  the  current  silver  coin  of  this  realm 
called  a  sixpence,  of  the  moneys  of  the  said  Thomas  Richard- 
son, with  intent  then  and  there  to  cheat  and  defraud  the  said 
Thomas  Richardson  of  the  same ;  whereas,  in  truth  and  in 
fact,  the  said  Adam  Young  the  younger  had  not  then  any 
power  or  right  whatsoever  to  grant  space  for  the  exhibition  of 
articles  at  the  said  Exhibition,  to  the  said  Harriet  Richardson, 
or  to  any  other  person  whatever,  or  any  space  whatever  in 
the  said  building,  to  the  said  Harriet  Richardson  or  any  other 
person,  as  the  said  Adam  Young  the  younger  then  and  there 
as  last  aforesaid  well  knew  ;  to  the  great  damage  of  the  said 
Thomas  Richardson,  against  the*  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace,  etc. 

Third  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  the  committing  of 
the  offence  hereinafter  next  mentioned,  to  wit,  on  the  day 
aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  an  application  was  made  by  the  said  Thomas  Rich- 
ardson to  the  said  Adam  Young  the  younger  for  a  certain  space, 
to  wit,  a  space  of  four  feet  square,  in  the  building  intended  for 
the  proposed  Great  Exhibition  of  one  thousand  eight  hundred 
and  fifty-one,  meaning  thereby  the  Great  Exhibition  of  the 
Works  of  Industry  of  all  Nations,  intended  to  be  holdcn  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-one. 
And  the  jurors  aforesaid,  upon  tludr  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  tiie  making  of  the  said 
last-mentioned  application,  an  Executive  Committee  for  car- 
rying out  the  said  exhibition  had  been  and  was  duly  appointed 
for  the  purpose  of  carrying  out  the  said  exhibition,  and  that, 
amongst  other  things,  the  power  of  allotting  space  in  the  said 
last-mentioned  building  to  persons  desirous  of  becoming  ex- 
iiibitors  in  the  said  exhiJHtion  had  been,  and  was,  vested  and 
iul rusted  to  the  said  chmmittee.  And  the  jurors  aforesaid, 
u[)OM  their  oath  aforesaid,  do  furtlier  present,  that  the  said 
Adam   Young  the  younger  afterwards,  to  wit,  on  the  day 


CHAP.  XIV.]  FALSE   PRETENCES.  113 

aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  at  the  parish  aforesaid,  in  the  city  aforesaid,  and 
within  the  jurisdiction  aforesaid,  unlawfully,  knowingly,  and 
fraudulently,  did  again  falsely  pretend  to  the  said  Thomas 
Richardson,  that  the  said  Adam  Young  the  younger  was  the 
only  authorized  agent  of  the  commissioners,  meaning  thereby 
that  he  was  the  only  authorized  agent  of  the  said  executive  com- 
mittee for  granting  space,  meaning  thereby  space  in  the  said 
last-mentioned  building,  and  that  the  said  Adam  Young  the 
younger,  then  had  power  to  allot  to  the  said  Thomas  Richard- 
son the  space  in  the  said  building,  so  applied  for  by  the  said 
Thomas  Richardson  as  last  aforesaid,  by  means  of  which  said 
last-mentioned  false  pretences,  the  said  Adam  Young  the 
younger,  did  then  and  there  as  last  aforesaid,  unlawfully 
attempt  and  endeavor  unlawfully  to  obtain  from  the  said 
Thomas  Richardson  a  large  sum  of  money,  to  wit,  the  sum 
of  ten  shillings,  of  the  moneys  of  the  said  Thomas  Richard- 
son, with  intent  then  and  there  to  cheat  and  defraud  him 
thereof;  whereas,  in  truth  and  in  fact,  the  said  Adam  Young 
the  younger  was  not,  at  the  time  he  so  falsely  pretended  as 
last  aforesaid,  an  authorized  agent  of  the  said  executive  com- 
mittee, for  granting  space  in  the  last-mentioned  building,  as 
he  the  said  Adam  Young  the  younger  then  and  there  as 
last  aforesaid,  well  knew.  And  whereas,  in  truth  and  in  fact, 
the  said  Adam  Young  the  younger  had  not,  at  the  time  he 
falsely  pretended  as  last  aforesaid,  any  power,  authority,  or 
right  whatsoever,  to  allot  any  space  whatever  in  the  said  last- 
mentioned  building  to  the  said  Thomas  Richardson,  or  to  any 
other  person,  as  he  the  said  Adam  Young  the  younger,  at  the 
time  he  so  falsely  pretended  as  last  aforesaid,  well  knew ;  to 
the  great  damage  of  the  said  Thomas  Richardson,  and  against 
the  peace,  etc. 

Fourth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  the  committing  of 
the  offence  next  hereinafter  mentioned,  to  wit,  on  the  day 
aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  an  application  was  made  by  the  said  Thomas  Rich- 
ardson to  the  said  Adam  Young  for  a  certain  space,  to  wit, 

10* 


114  FALSE   PRETENCES.  [CHAP.  XIV. 

the  space  of  four  feet  square,  in  the  building  intended  for  the 
proposed  Great  Exhibition,  to  be  holden  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-one,  to  wit,  the 
proposed  Great  Exhibition  of  Works  of  Industry  of  all  Na- 
tions. And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  Adam  Young  the  younger  after- 
wards, to  wit,  on  the  day  aforesaid,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty,  at  the  parish  aforesaid, 
in  the  city  and  within  the  jurisdiction  aforesaid,  unlawfully, 
knowingly,  and  fraudulently,  did  again  falsely  pretend  to  the 
said  Thomas  Richardson,  that  the  said  Adam  Young  the 
younger  then,  as  last  aforesaid,  had  power  to  allot  to  the  said 
Thomas  Richardson  the  space  in  the  said  last-mentioned 
building,  so  applied  for  by  the  said  Thomas  Richardson  as 
last  aforesaid,  by  means  of  which  said  last-mentioned  false  pre- 
tence the  said  Adam  Young  the  younger  did  then  and  there, 
as  last  aforesaid,  unlawfully  attempt  and  endeavor  unlawfully 
to  obtain  from  the  said  Thomas  Richardson  a  large  sum  of 
money,  to  wit,  the  sum  of  ten  shillings,  of  the  moneys  of  the 
said  Thomas  Richardson,  with  intent  then  and  there  to  cheat 
and  defraud  the  said  Thomas  Richardson  thereof;  whereas, 
in  truth  and  in  fact,  the  said  Adam  Young  the  younger  had 
not,  at  the  time  he  so  falsely  pretended  as  last  aforesaid,  any 
power,  authority,  or  right  whatever,  to  allot  any  space  what- 
ever in  the  last-mentioned  building,  to  the  said  Thomas  Rich- 
ardson, or  to  any  other  person,  as  the  said  Adam  Young  the 
younger  at  the  time  he  so  falsely  pretended  as  last  aforesaid, 
well  knew  ;  to  the  great  damage  of  the  said  Thomas  Richard- 
son, and  against  the  peace,  etc. 


CHAP.  XIV.]  FALSE   PRETENCES.  115 


8.  Against  two  defendants  for  obtaining  money  under  false  pre- 
tences;  the  false  pretences  being;  that  one  of  the  defend- 
ants having'  advanced  money  to  the  other  on  a  deposit  of 
certain  title  deeds,  had  himself  deposited  the  deeds  icith  a 
friend,  and  that  he  required  a  sum  of  money  to  redeem 
them;  ivith  Counts  for  conspiracy} 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 
and  before  and  at  the  time  of  the  committing  of  the  offence 
hereinafter  mentioned,  one  C.  R.  acting  in  fraudulent  collusion 
with  one  J.  A.,  had  retained  and  employed  one  W.  J.,  then 
and  still  practising  as  an  attorney  at  law  and  solicitor  in 
chancery,  as  the  attorney  and  solicitor  of  the  said  C.  R.  to 
make  application  to  the  said  J.  A.  for  a  certain  debt  of  five 
hundred  dollars,  then  alleged  by  the  said  C.  R.  to  be  due  to 
him  from  the  said  J.  A.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  J.  A.  after- 
wards and  before  the  committing  of  the  offence  hereinafter 
mentioned,  acting  in  fraudulent  collusion  with  the  said  C.  R., 
offered  to  and  arranged  with  the  said  W.  J.  as  such  attorney 
and  solicitor  of  the  said  C.  R.  as  aforesaid,  to  discharge  such 
alleged  debt  of  five  hundred  dollars,  and  also  the  further  sum 
of  fifty  dollars,  for  a  certain  other  alleged  debt  upon  the  deeds 
hereinafter  mentioned  being  delivered  to  the  said  J.  A.,  which 
said  deeds  the  said  C.  R.,  acting  in  fraudulent  collusion  with 
the  said  J.  A.,  afterwards  and  before  the  committing  of  the 
i  offence  hereinafter  mentioned,  proposed  to  place  in  the  hands 
of  the  said  W.  J.  as  the  attorney  and  solicitor  of  the  said 
C.  R.,  for  the  purpose  of  being  so  delivered  to  the  said  J.  A. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  C.  R.  late  of  the  parish  of  Saint  George, 
Bloomsbury,  in  the  county  of  Middlesex,  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  laborer,  and  the 
said  J.  A.  late  of  the  same  place,  laborer,  devising  and  con- 
triving, and  wickedly  combining  and  intending  to  deceive  the 

^  4  Cox,  C.  C.  Appendix,  p.  xli. 


116  FALSE  PRETENCES.  [CHAP.  XIV. 

said  W.  J.  in  the  premises,  and  to  obtain  from  the  said  W.  J. 
the  said  sum  of  five  hundred  dollars,  and  to  cheat  and  defraud 
him  of  the  same  afterwards,  to  wit,  on  the  first  day  of  July 

in  the  year  of  our  Lord ,  at  the  parish  of  Saint  George, 

Bloomsbury  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  unlawfully, 
knowingly,  and  designedly  did  falsely  pretend  to  the  said 
W.  J.  that  the  said  J.  A.  was  then  really  and  truly  indebted 
to  the  said  C.  R.  in  the  said  sum  of  five  hundred  dollars,  for 
money  lent  by  the  said  C.  R.  to  the  said  J.  A. ;  that  the  said 
J.  A.  had  then  deposited  with  the  said  C.  R.  certain  deeds 
relating  to  the  property  of  the  wife  of  the  said  J.  A.  for  the 
purpose  of  securing  payment  of  the  said  sum  of  five  hundred 
dollars  to  the  said  C.  R.,  but  that  the  said  C.  R.  afterwards 
had  deposited  such  deeds  with  a  friend  of  the  said  C.  R.,  who 
had  then  advanced  money  upon  the  security  of  the  same 
deeds  to  the  said  C.  R.,  and  then  held  the  said  deeds  as  such 
security  as  last  aforesaid ;  that  the  said  C.  R.  then  wanted 
the  said  sum  of  five  hundred  dollars  from  the  said  W.  J.  for 
the  purpose  of  recovering  possession  of  the  said  deeds,  and  to 
enable  the  said  C.  R.  to  place  the  same  in  the  hands  of  the 
said  W.  J.  in  order  that  the  same  might  be  redelivered  to  the 
said  J.  A.  upon  the  payment  by  him  to  the  said  W.  J.  of  the 
said  sum  of  five  hundred  dollars,  pursuant  to  such  offer  and 
arrangement  in  that  behalf  as  aforesaid ;  by  means  of  which 
said  several  false  pretences,  they  the  said  C.  R.  and  J.  A. 
then  and  there,  to  wit,  on  the  day  and  year  aforesaid,  and 
within  the  jurisdiction  of  the  said  Central  Criminal  Court,, 
unlawfully,  knowingly,  and  designedly  did  fraudulently  ob- 
tain of  and  from  the  said  W.  J.  one  order  for  the  payment  of 
money,  to  wit,  for  the  payment,  and  of  the  value  of  five  hun- 
dred dollars  then  and  there  being  the  pro})erty  of  the  said 
W.  J.,^and  one  piece  of  paper  of  the  value  of  one  cent  of  the 
goods  and  ciiattels  of  the  said  W.  J.,  with  intent  then  and  there 
to  cheat  and  defraud  him  of  the  same  property,  goods,  and  chat- 
tels ;  and  whereas,  in  Iruth  and  in  fact,  the  said  J.  A.  was  not 
then  really  and  truly  indebted  to  the  said  C.  R.'in  the  said  sum 
of  five  luuHlrcd  dollars,  as  the;  said  C.  R.  and  J.  A.  so  falsely 


CHAP.  XIV.]  FALSE  PRETENCES.  117 

pretended  as  aforesaid,  either  for  money  lent  or  any  cause 
whatsoever.  And  whereas,  in  truth  and  in  fact,  the  said  J.  A. 
had  not  then  deposited  with  the  said  C.  R.  certain  deeds  relat- 
ing to  the  property  of  the  wife  of  the  said  J.  A.  for  the  pur- 
pose of  securing  payment  of  the  said  sum  of  five  hundred 
dollars  to  the  said  C.  R,.,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended  as  aforesaid,  or  of  any  sum  of  money  whatever. 
And  whereas,  in  truth  and  in  fact,  the  said  C.  R.  had  not  then 
deposited  any  such  deeds  as  the  said  C.  R.  and  J.  A.  so 
falsely  pretended  as  aforesaid,  with  any  friend  of  the  said 
C.  R.  who  had  then  advanced  money  upon  the  security  of 
such  deeds  to  the  said  C.  R.,  or  with  any  person  whatsoever ; 
nor  did  any  such  friend  of  the  said  C.  R.,  as  the  said  C.  R. 
and  J.  A.  so  falsely  pretended  as  aforesaid,  then  hold  such 
deed  as  a  security  for  any  money  advanced  to  the  said  C.  R., 
as  the  said  C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid. 
And  whereas,  in  truth  and  in  fact,  the  said  C.  R.  did  not  then 
want  the  said  sum  of  five  hundred  dollars  from  the  said  W.  J. 
for  the  purpose  of  recovering  possession  of  any  such  deeds  as 
the  said  C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid,  or 
to  enable  the  said  C.  R.  to  place  such  deeds  in  the  hands  of 
the  said  W.  J.  in  order  that  the  same  might  be  redelivered  to 
the  said  J.  A.  upon  the  payment  by  him  to  the  said  W.  J.  of 
the  said  sum  of  five  hundred  dollars,  pursuant  to  such  offer 
and  arrangement  in  that  behalf  as  aforesaid.  And  whereas, 
in  truth  and  in  fact,  the  said  alleged  debt,  and  the  said  sup- 
posed deeds,  had  no  existence  whatsoever,  but  were  pretended 
to  have  existence  by  the  said  C.  R.  and  J.  A.  as  aforesaid,  for 
the  purpose  of  deceiving,  cheating,  and  defrauding  the  said 
W.  J.  in  manner  aforesaid,  and  for  no  other  purpose  whatever; 
to  the  great  injury  and  deception  of  the  said  W.  J.,  to  the  evil 
and  pernicious  example  of  all  other  persons  in  the  like  case 
offending,  against  the  peace,  etc.,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C.  R.  and  J.  A.,  de- 
vising and  contriving,  and  wickedly  combining  and  intending 
to  deceive  the  said  W.  J.,  and  to  obtain  from  the  said  W.  J. 


118  FALSE  PRETENCES.  [CHAP.  XIV. 

the  said  sum  of  five  hundred  dollars,  and  to  cheat  and  defraud 
him  of  the  same,  afterwards,  to  wit,  on  the  first  day  of  July 

in  the  year  of  our  Lord ,  at  the  parish  of  Saint  George, 

Bloomsbury  aforesaid,  in  the  county  of  Middlesex  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  unlawfully,  knowingly,  and  designedly,  did  falsely  pre- 
tend to  the  said  W.  J.  that  the  said  J,  A.  had  before  then  de- 
posited with  the  said  C.  R.  certain  deeds  relating  to  the  prop- 
erty of  the  wife  of  the  said  J.  A.  as  a  security  for  the  payment 
to  the  said  C.  R.  of  the  sum  of  five  hundred  dollars;  that  the 
said  C.  R.  had  afterwards  deposited  such  deeds  with  a  friend 
of  the  said  C.  R.,  who  had  then  advanced  money  to  the  said 
C.  R.  upon  the  security  of  the  said  deeds,  and  then  held  such 
deeds  as  such  security  as  last  aforesaid.  And  that  the  said 
C.  R.  then  required  the  sum  of  five  hundred  dollars  for  the 
purpose  of  recovering  possession  of  the  said  deeds,  by  means 
of  which  said  several  false  pretences  in  this  count  mentioned, 
the  said  C.  R.  and  J.  A.  did  then  and  there  unlawfully,  know- 
ingly, and  designedly,  fraudulently  obtain  of  and  from  the 
said  W.  J.  one  order  for  the  payment  of  money,  to  wit,  for  the 
payment  of  the  sum  of  five  hundred  dollars,  then  and  there 
being  of  the  value  of  five  hundred  dollars,  and  the  property  of 
the  said  W.  J.,  and  one  piece  of  paper  of  the  value  of  one  cent, 
of  the  goods  and  chattels  of  the  said  W.  J.,  with  intent  then  and 
there  to  cheat  and  defraud  the  said  W.  J.  of  the  said  goods  and 
chattels  and  property ;  whereas,  in  truth  and  in  fact,  the  said 
J.  A.  had  not  deposited  with  the  said  C.  R.  such  deeds  relat- 
ing to  the  property  of  the  wife  of  the  said  J.  A.,  as  the  said 
C.  R.  and  J.  A.  so  falsely  pretended,  as  in  this  count  men- 
tioned. And  whereas,  in  truth  and  in  fact,  the  said  C.  R.  had 
not  deposited  such  deeds  with  any  friend  of  the  said  C.  R.,  as 
the  said  C.  R.  and  J.  A.  so  falsely  pretended,  as  in  this  count 
rniMitioncd.  And  whereas,  in  truth  and  in  fact,  no  friend  of 
the  said  C  R.,  nor  any  person  whatsoever,  had  then  advanced 
money  to  the  said  ('.  R.  upon  the  security  of  the  said  deeds. 
And  whereas,  in  truth  and  in  fact,  no  friend  of  th(!  said  C.  R., 
nor  ;iiiy  person  whatsoever,  then  held  such  deeds  as  any  secu- 
rity whatsoever.      And  whereas,  in  truth  and  in  fact,  the  said 


CHAP.  XIV.]  FALSE   PRETENCES.  119 

C.  R.  did  not  then  require  the  said  sunn  of  five  hundred  dol- 
lars, or  any  sum  of  money  whatsoever,  for  the  purpose  of 
recovering  possession  of  such  deeds  as  the  said  C.  R.  and 
J.  A.  so  falsely  pretended,  as  in  this  count  mentioned.  And 
whereas,  in  truth  and  in  fact,  such  deeds  had  no  existence 
whatsoever,  but  were  so  pretended  by  the  said  C.  R.  and  J.  A. 
to  have  existence  as  aforesaid,  for  the  purpose  of  cheating  and 
defrauding  the  said  W.  J.  as  aforesaid,  and  for  no  other  pur- 
pose whatsoever;  to  the  great  injury  and  deception  of  the 
said  W.  J.,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace,  etc. 

Third  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  J.  A.  and  C.  R. 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  Centi-al  Criminal  Court,  unlawfully  and  wickedly 
did  conspire,  combine,  confederate,  and  agree  together,  and 
with  divers  other  evil  disposed  persons,  whose  names  to  the 
jurors  aforesaid  are  as  yet  unknown,  falsely  and  fraudulently 
to  pretend  and  cause  to  appear  to  the  said  W.  J.  that  the  said 
J.  A.  was  then  indebted  to  the  said  C.  R.  in  the  sum  of  five 
hundred  dollars ;  that  the  said  J.  A.  had  deposited  with  the 
said  C.  R.  certain  deeds  relating  to  the  property  of  the  wife  of 
the  said  J.  A.,  as  a  security  for  the  payment  to  the  said  C.  R. 
of  the  said  sum  of  five  hundred  dollars ;  that  the  said  C.  R. 
had  afterwards  deposited  such  deeds  with  a  friend  of  the  said 
C.  R.  who  had  advanced  money  upon  the  security  of  the 
same,  and  by  whom  such  deeds  were  then  held ;  that  the  said 
J.  A.  was  desirous  of  discharging  the  said  debt  due  from  him 
to  the  said  C.  R.,  upon  the  redelivery  to  the  said  J.  A.  of  the 
said  deeds,  but  that  the  said  C.  R.  was  then  unable  to  procure 
the  redelivery  to  him  of  the  said  deeds,  for  want  of  money  to 
pay  such  money  so  advanced  to  him  upon  the  security  of  the 
same,  and  to  induce  and  persuade  the  said  W.  J.  by  means 
of  the  several  false  representations  aforesaid,  and  upon  the 
faith  and  confidence  that  such  deeds  really  existed,  and  upon 
the  promise  and  assurance  of  the  said  C.  R.  that  he  would 
deposit  the  said  deeds  with  the  said  W.  J,,  for  the  purpose  of 


120  FALSE  PRETENCES.  [CHAP.  XIV. 

delivering  the  same  to  the  said  J.  A.,  and  receiving  from  the 
said  J.  A.  such  debt  of  five  hundred  dollars,  so  to  be  pretended 
to  be  due  from  the  said  J.  A.  to  the  said  C.  R.,  to  obtain  from 
the  said  W.  J.  divers  of  the  moneys  of  the  said  W.  J.,  amount- 
ing to  the  sum  of  five  hundred  dollars,  for  the  pretended  pur- 
pose of  obtaining  such  deeds  from  such  friend  of  the  said 
C.  R.,  and  to  cheat  and  defraud  the  said  W.  J.  of  the  same, 
and  mutually  to  aid  and  assist  one  another  in  carrying  out 
and  putting  into  execution  the  said  unlawful  and  wicked  com- 
bination, conspiracy,  confederation,  and  agreement ;  whereas, 
in  truth  and  in  fact,  no  such  deeds  as  in  this  count  mentioned, 
then  or  ever  had  any  existence  whatsoever;  to  the  great 
injury  and  deception  of  the  said  W.  J.,  and  against  the  peace, 
etc. 

Fourth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  J.  A.  and  C.  R. 
after\,vards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  par- 
ish aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  Central  Criminal  Court,  unlawfully  and  wick- 
edly did  conspire,  combine,  confederate,  and  agree  together, 
and  with  divers  other  evil  disposed  persons,  whose  names  to 
the  jurors  aforesaid  are  as-  yet  unknown,  by  divers  false 
pretences,  and  by  divers  false,  artful,  indirect,  deceitful,  and 
fraudulent  means,  devices,  arts,  stratagems,  and  contrivances, 
to  obtain  and  acquire  into  their  hands  and  possession,  of  and 
from  the  said  W.  J,,  divers  of  his  moneys,  amounting  to  a 
large  sum,  to  wit,  the  sum  of  five  hundred  dollars,  and  to 
cheat  and  defraud  him  of  the  same  ;  to  the  great  injury  and 
deception  of  the  said  W.  J.,  against  the  peace,  etc.,  and  con- 
trary to  the  form  of  the  statute,  etc. 

9.    Obtainini^  money  and  g-oods  hij  means  of  a  flash  note?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

'  S(!0,  lleglna  v.  Coulson,  1  ])fiiison,  C.  ('.  hWl  ;  1  'IVmi)lc  &  Mow,  C.  C. 
592;  4  Cox,  C.  C.  227;  1  Eng.  Law  and  Kcj.  Hep.  550;  ante,  p.  DO. 


CHAP.  XIV.]  FALSE   PRETENCES.  121 

the  year  of  our  Lord  — — ,  at  B.  aforesaid,  in  the  county 
aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  C.  D.  that  a  certain  printed  paper  then  produced 
by  the  said  A.  B.,  and  offered  and  given  by  him  to  the  said 
C.  D.  in  payment  for  certain  pigs  before  then  agreed  to  be 
sold  by  the  said  C.  D.  to  the  said  A.  B.,  was  a  good  and  valid 
promissory  note  for  the  payment  of  fifty  dollars,  by  means  of 
which  said  false  pretence  the  said  A.  B.  did  then  and  there 
unlawfully,  knowingly,  and  designedly  obtain  from  the  said 
C.  D.  five  pigs,  of  the  value  of  five  dollars  each,  and  certain 
money,  to  wit,  the  sum  of  twenty-five  dollars,  of  the  goods, 
chattels,  and  moneys  of  the  said  C.  D.,  with  intent  then  and 
there  to  cheat  and  defraud  the  said  C.  J),  of  the  same, 
"Whereas,  in  truth  and  in  fact,  the  said  printed  paper  was 
not  a  good  and  valid  promissory  note  for  the  payment  of  the 
sum  of  fifty  dollars,  or  for  the  payment  of  any  sum  what- 
ever, as  the  said  A.  B.  then  and  there  well  knew ;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

10.   Obtaining'  money  by  means  of  a  promissory  note  of  a  bank 
ivhich  has  stopped  payment?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late 
of  B.  in  the  county  of  S.,  gentleman,  on  the  first  day  of  June 

in  the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  C.  D.  that  a  certain  paper  writing,  partly  printed 
and  partly  written,  purporting  to  be  a  bank-note  for  the  pay- 
ment of  twenty  dollars,  and  to  have  been  issued  by  a  certain 
firm  carrying  on  business  as  bankers,  under  the  name  and 
style  of  The  Bank,  which  said  paper  ^^^:iting  is  of  the 

tenor  following,  that  is  to  say,  etc. ;  then  produced  by  the 
said  A.  B.  and  offered  by  him  to  the  said  C.  D.,  in  exchange 
for  two  eagles,  was  then  and  there  of  the  value  of  twenty  dol- 


^  See  observations  of  Bolland,  B.,  in  Eex  v.  Barnard,  7  Carrington  & 
Pajne,  784 ;  see  also  Hex  v.  Spencer,  3  Carrington  &  Payne,  420. 

11 


122  FALSE  PRETENCES.  [CHAP.  XIV. 

lars,  and  was  then  and  there  a  promissory  note  of  a  bank  the 
notes  of  which  were  then  in  circulation,  and  that  there  was  a 
firm  then  carrying  on  business  under  the  name  and  style  of 
The  Bank,  and  that  the  said  bank-note  was  then  and 

there  a  good,  valid,  and  available  security  for  the  payment 
of  twenty  dollars,  by  means  of  which  said'  false  pretences 
the  said  A.  B.  did  then  and  there  unlawfully,  knowingly, 
and  designedly  obtain  from  the  said  C.  D.  certain  money,  to 
wit,  the  sum  of  twenty  dollars,  of  the  moneys  of  the  said 
C.  D.,  with  intent  then  and  there  to  defraud  the  said  C.  D. 
of  the  same.  Whereas,  in  truth  and  in  fact,  the  said  paper 
writing  was  not  then  of  the  value  of  twenty  dollars.  And 
whereas,  in  truth  and  in  fact,  the  said  printed  paper  was  not 
then  a  promissory  note  of  a  bank  the  notes  of  which  were 
then  in  circulation,  and  whereas,  in  truth  and  in  fact,  there 
was  not  any  firm  then  carrying  on  business  under  the  name 
and  style  of  The  Bank,  and  whereas,  in  truth  and  in 

fact,  the  said  printed  paper  was  not  then  a  good,  valid,  and 
available  security  for  the  payment  of  twenty  dollars,  or  for  the 
payment  of  any  sum  whatever,  as  the  said  A.  B.  then  and 
there  well  knew;  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

11.  Obtaining  ^oods  by  cheque  on  a  bank  ivhere  the  defendant 
had  no  effects} 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of  B. 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.  that  a  certain  paper  writing  produced  by  the 
said  A.  B.  to  the  said  C.  D.,  and  purporting  to  be  a  cheque 
drawn  by  the  said  A.  B.  upon  E.  F.  and  Company,  bankers, 

■  Sec.  Hex  )'.  .Tarkson,  3  Cinipboll,  f^TO;  fi  Cox,  C.  C.  Appoiidix,  page  1. 
"  This  iiidictiiK'nt  is  fraincil  with  reference  to  Rex  i'.  Parker,  2  Moody,  C.  C. 
1  ;  7  Carringlon  &  I'ayiie,  825  ;  and  J\Ir.  Greaves's  note  in  his  edition  of 
Russell  on  Crimes,  vol.  ii.  p.  300,  note  (/)." 


CHAP.  XIV.]  FALSE   TIIETENCES.  123 

for  the  payment  to  the  bearer  of  the  sum  of  one  hundred 
dollars,  was  then  and  there  a  good,  genuine,  and  available 
order  for  payment  of  the  sum  of  one  hundred  dollars,  and 
was  then  and  there  of  the  value  of  one  hundred  dollars, 
which  said  cheque  is  of  the  tenor  following,  that  is  to  say, 
etc. ;  and  that  the  said  A.  B.  kept  an  account  with  the  said 
E.  F.  and  Company,  and  that  the  said  A.  B.  had  money  in 
the  hands  of  the  said  E.  F.  and  Company  for  the  payment 
of  the  said  cheque,  and  that  the  said  A.  B.  had  full  power, 
right,  and  authority  to  draw  cheques  upon  the  said  E.  F. 
and  Company,  by  means  of  which  said  false  pretences  the 
said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and  de- 
signedly obtain  from  the  said  C.  D.  a  gold  watch,  of  the  value 
of  seventy-five  dollars,  and  a  gold  chain,  of  the  value  of 
twenty-five  dollars,  of  the  goods  and  chattels  of  the  said  C.  D., 
with  intent  then  and  there  to  cheat  and  defraud  the  said 
C.  D.  of  the  same.  Whereas,  in  truth  and  in  fact,  the  said 
paper  writing  was  not  then  and  there  a  good,  genuine,  and 
available  order  for  payment  of  the  sum  of  one  hundred  dol- 
lars ;  nor  was  the  same  then  and  there  of  the  value  of  one 
hundred  dollars ;  and  whereas,  in  truth  and  in  fact,  the  said 

A.  B.  did  not  keep  any  account  with  the  said  E.  F.  and  Com- 
pany ;  and  whereas,  in  truth  and  in  fact,  the  said  A.  B.  had 
not  any  money  in  the  hands  of  the  said  E.  F.  and  Company 
for  the  payment  of  the  said  cheque;  and  whereas,  in  truth 
and  in  fact,  the  said  A.  B.  had  not  any  power,  right,  or 
authority  to  draw  cheques  upon  the  said  E.  F.  and  Com- 
pany, as  the  said  A.  B.  then  and  there  well  knew ;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

12.   Obtaining  money  by  false  statement  of  authority  to  receive 

debts. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  aforesaid, 

unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 

C.  D.  that  the  said  A.  B.  was  then  and  there  in  partnership 


124  FALSE   PRETENCES.  [CHAP.  XIV. 

with  E.  F.,  and  that  the  said  A.  B.  was  tfien  and  there  author- 
ized to  receive  debts  due  to  the  said  E.  F. ;  by  means  of  which 
said  false  pretences,  the  said  A.  B.  did  then  and  there  unlaw- 
fully, knowingly,  and  designedly  obtain  from  the  said  C.  D. 
the  sum  of  forty  dollars,  of  the  moneys  of  the  said  C.  D.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D. 
of  the  same.  Whereas,  in  truth  and  in  fact,  the  said  A.  B. 
was  not  then  and  there  in  partnership  with  the  said  E.  F. ; 
and  whereas,  in  truth  and  in  fact,  the  said  A.  B.  was  not  then 
and  there  authorized  to  receive  debts  due  to  the  said  E.  F., 
as  the  said  A.  B.  then  and  there  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

13.  Obtaining'  money  by  pretence  of  payment  to  a  third  person} 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  C.  D.  that  the  said  A.  B.  had  paid  to  E.  F.  the 
sum  of  five  dollars  ;  by  means  of  which  said  false  pretence  the 
said  A.  B.  did  then  and  there  unlawfully  obtain  from  the  said 

C.  D.  the  sum  of  five  dollars  of  the  moneys  of  the  said  C.  D., 
with  intent  then  and  there  to  cheat  and  defraud  the  said  C.  D. 
of  the  same.  Whereas,  in  truth  and  in  fact,  the  said  A.  B. 
had  not  then  paid  to  the  said  E.  F.  the  sum  of  five  dollars,  as 
the  said  A.  B.  then  and  there  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

14.  Obtaining  money  by  false  pretences  as  to  the  name  and  cir- 

cumstances of  the  defendant? 

The  jurors  aforesaid,  upon  their  oath  present,  that  A.  B. 


'  Sec  Rox  V.  ricstow,  1  Campboll,  494. 

*  Obtaining  money  by  means  of  false  statements  of  llie  name  and  circum- 
stances of  the  defendant,  or  of  a  third  person,  either  in  a  begging  letter  or 
by  personal  representations,  is  ■within  the  statute.     See  llegiua  v.  Jones,  1 


CHAP.  XIV.]  FALSE   PRETENCES.  125 

late  of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of 

June  in  the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the 

county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.  that  the  said  A.  B.  was  E.  F.,  and  that 
the  said  A.  B.  was  a  ruined  merchant,  and  in  ill  health ;  and 
that  the  said  A.  B.  had  been  bred  to  mercantile  pursuits ;  and 
that  the  said  A.  B.  lost  a  large  sum  of  money  by  the  upsetting 
of  a  vessel ;  by  means  of  which  said  false  pretences  the  said 
A.  B.  did  then  and  there  unlawfully,  knowingly,  and  design- 
edly obtain  from  the  said  C  D.  the  sum  of  twenty  dollars, 
of  the  moneys  of  the  said  C.  D.,  with  intent  then  and  there 
to  cheat  and  to  defraud  the  said  C.  D.  of  the  same.  Whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  E.  F. ;  and  where- 
as, in  truth  and  in  fact,  the  said  A.  B.  was  not  a  ruined  mer- 
chant, nor  was  the  said  A.  B.  in  ill  health ;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  had  not  been  bred  to  mer- 
cantile pursuits;  and  whereas,  in  truth  and  in  fact,  the  said 

A.  B.  had  not  lost  a  large  sum  of  money,  or  any  money  what- 
ever, by  the  upsetting  of  a  vessel,  as  the  said  A.  B.  then  and 
there  well  knew ;  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

15.   Obtaining'  money  by  j^crsonatirig  another} 

The  jurors,  etc.,  upon  their  oath  presefit,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore^ 

said,  unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  E.,  the  wife  of  C.  D.,  that  the  said  A.  B.  was  F.  G., 
and  that  he  was  the  same  person  that  had  cured  H.  I.;  by 
means  of  which  said  false  pretences,  the  said  A.  B.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  E.  the  sum  of  five  dollars,  of  the  money  of  the  said 


Denison,  C.  C.  551 ;  4  Cox,  C.  C.  198;  1  Eng.  Law  and  Eq.  Reps.  533  ;  1 
Temple  &  Jlew,  C.  C.  270.     If  tbe  money  were  obtained  by  the  medium  of  a 
letter,  a  count  should  be  added,  setting  it  out  according  to  its  tenor. 
^  See  Regina  v.  Bloomfield,  Carrington  and  Marshman,  537. 

11* 


126  FALSE   PRETENCES.  [CHAP.  XIV. 

C.  D.,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  C.  D.  of  the  same  ;  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  was  not  F.  G. ;  and  whereas,  in  truth  and  in  fact, 
the  said  A.  B.  was  not  the  same  person  that  had  cured  H.  I., 
as  the  said  A.  B.  then  and  there  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

16.  Obtaining  money  by  false  representations  as  to  the  employ- 
ment and  condition  of  the  defendant.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  C.  D.  that  the  said  A.  B.  was  then  and  there  em- 
ployed by  one  E.  F.  to  drive  some  cattle  from  Wales  to  Lon- 
don for  the  said  E.  F.,  and  that  the  said  A.  B.  had  been 
detained  by  the  weather  and  the  state  of  the  roads  until  all 
his  money  was  gone,  and  that  the  said  A.  B.  was  without  any 
money  to  enable  him  to  proceed  on  his  journey ;  by  means  of 
which  said  false  pretences  the  said  A.  B.  did  then  and  there 
unlawfully,  knowingly,  and  designedly  obtain  from  the  said 

C.  D.  the  sum  of  twenty  dollars  of  the  moneys  of  the  said 
C.  D.,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  C.  D.  of  the  same ;  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  was  not  then  and  there  employed  by  the  said  E.  F. 
to  drive  some  cattle  from  Wales  to  London  ;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  was  not  then  employed  to 
drive  any  cattle  whatever ;  and  whereas,  in  truth  and  in  fact, 
the  said  A.  B.  had  not  been  detained  by  the  weather  and 
the  state  of  the  roads,  as  the  said  A.  B.  then  and  there  well 
knew ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


»  Sec  Rex  r.  Villcncuvc,  2  East,  V.  C.  380. 


CHAP.  XIV.]  FALSE   PRETENCES.  127 


17.  Obtaining-  a  horse  by  false  representation?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late 
of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  C.  D.  that  the  said  A.  B.  was  then  the  servant  of 
a  gentleman,  living  at  ,  and  that  the  said  A.  B.  was  then 

employed  to  purchase  horses  for  his  master,  and  that  the  said 
A.  B.  had  purchased  several  horses  at  fair  for  his  mas- 

ter; by  means  of  which  said  false  pretence  the  said  A.  B. 
did  then  and  there  unlawfully,  knowingly,  and  designedly 
obtain  from  the  said  C.  D.  a  filly,  of  the  value  of  fifty  dollars, 
of  the  property  of  the  said  C.  D.,  with  intent  then  and  there 
to  cheat  and  defraud  the  said  C.  D.  of  the  same.  Whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  then  the  servant 
of  any  gentleman  living  at  .    And  whereas,  in  truth 

and  in  fact,  the  said  A.  B.  was  not  then  employed  to  purchase 
horses  for  his  master.  And  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  had  not  purchased  any  horses  at  fair  for  his 

master,  as  the  said  A.  B.  then  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

18.  Obtaining  goods  by  falsely  pretending  that  the  defendant 
was  a  trader  in  solvent  circumstances. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of  B. 
in  the  county  of  S.,  trader,  on  the  first  day  of  June  in  the  year 

of  our  Lord  ,  at  B.  aforesaid,  in  the  county  aforesaid, 

unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 
C.  D.  that  the  said  A.  B.  was  a  member  of  a  certain  firm  car- 
rying on  business  at  B.  aforesaid,  in  the  county  aforesaid,  by 
and  under  the  name,  style,  and  firm  of  E.  F.  and  Company, 
and  that  the  said  last-mentioned  firm  of  E.  F.  and  Company 
was  then  and  there  in  solvent  circumstances,  and  had  then,  to 

^  See  Rex  r.  Dale,  7  Carrington  &  Payne,  372. 


128  FALSE  PRETENCES.  [CHAP.  XIV. 

wit,  on  the  said  first  day  of  June  in  the  year  aforesaid,  at  B. 
aforesaid,  in  the  county  aforesaid,  a  balance  in  its  favor  of  ten 
thousand  dollars  ;  by  means  of  which  said  false  pretences  the 
said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and  de- 
signedly, obtain  from  the  said  C.  D.  one  hundred  China  plates, 
of  the  value  of  one  dollar  each  ;  fifty  China  dishes,  of  the  value 
of  two  dollars  each,  and  fifty  China  dish  covers,  of  the  value  of 
one  dollar  each;  one  hundred  China  tea-cups,  of  the  value  of 
fifty  cents  each  ;  one  hundred  China  tea  saucers,  of  the  value 
of  fifty  cents  each ;  twenty  China  jugs,  of  the  value  of  two 
dollars  each,  and  five  hundred  pieces  of  China  ware,  of  the 
value  of  one  dollar  each,  and  two  crates,  of  the  value  of  five 
dollars  each,  of  the  property  of  the  said  C.  D.,  with  intent 
then  and  there  to  cheat  and  defraud  the  said  C.  D.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  firm  of  E.  F.  and 
Company  was  not  then  and  there  in  solvent  circumstances ; 
and  whereas,  in  truth  and  in  fact,  the  said  firm  of  E.  F.  and 
Company  had  not  at  the  time  the  said  A.  B.  so  falsely  pre- 
tended as  aforesaid,  a  balance  in  their  favor  of  ten  thousand 
dollars,  as  the  said  A.  B.  then  and  there  well  knew ;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

19.   Obtaining"  money  by  false  allegations  of  the  delivery  of 

goods?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.  that  the  said  A.  B.  had  carried  certain  goods  of 
the  said  C.  D.  from  to  and  had  delivered  the  said 

goods  to  E.  F.,  and  that  the  said  E.  F.  had  given  the  said 
A.  B.  a  written  receipt  for  the  said  goods,  and  that  the  said 
A.  ]^.  liad  cither  lost  or  mislaid  the  said  receipt,  or  left  it  at 
home  ;  by  means  of  which  said  false  pretences  the  said  A.  B. 
did  then  and   there  unlawfully,  knowingly,  and   designedly 

1  Sec  Ilex  V.  Airey,  2  East,  30. 


CHAP.  XIV.]  FALSE   PRETENCES.  129 

obtain  from  the  said  C.  D.  the  sum  of  five  dollars,  of  the 
moneys  of  the  said  C.  D.,  with  intent  then  and  there  to  cheat 
and  defraud  the  said  C.  D.  of  the  same.  Whereas,  in  truth 
and  in  fact,  the  said  A.  B.  had  not  carried  the  said  goods  of 
the  said  C.  D.,  or  any  part  thereof,  from  to  ;  and 

whereas,  in  truth  and  in  fact,  the  said  A.  B.  had  not  deliv- 
ered the  said  goods  to  E.  F. ;  and  whereas,  in  truth  and  in 
fact,  the  said  E.  F.  had  not  given  the  said  A.  B.  any  written 
receipt  for  the  said  goods  or  for  any  goods  whatever ;  and 
whereas,  in  truth  and  in  fact,  the  said  A.  B.  never  had  in  his 
possession  any  receipt  for  the  said  goods  from  the  said  E.  F. 
or  from  any  other  person,  as  the  said  A.  B.  then  and  there 
well  knew ;  contrary  to  the  form  oi  the  statute  in  such  case 
made  and  provided. 

20.  Obtaining'  money  by  false  pretence  as  to  the  amount  due  for 
carriage  of  a  parcel.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.  the  servant  of  E.  F.,  that  the  sum  of  three  dol- 
lars had  been  charged,  and  was  then  due  and  payable  for  the 
carriage  and  porterage  of  a  certain  parcel  then  and  there 
brought  by  the  said  A.  B.  for  the  said  E.  F.,  and  then  and 
there  delivered  to  the  said  C.  D.  by  the  said  A.  B. ;  and  that 
the  said  A.  B.  was  then  and  there  authorized  and  directed 
to  receive  and  take  the  sum  of  three  dollars  for  the  carriage 
and  porterage  of  the  said  parcel ;  by  means  of  which  said  false 
pretences,  the  said  A.  B.  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  obtain  from  the  said  C.  D.  the  sura  of 
two  dollars,  of  the  moneys  of  the  said  E.  F.,  with  intent  then 
and  there  to  cheat  and  defraud  the  said  E.  F.  of  the  same. 
Whereas,  in  truth  and  in  fact,  the  sum  of  three  dollars  had 
not  been  charged,  nor  was  the  said  sum  of  three  dollars  then 

*  See  Rex  v.  Douglas,  1  Campbell,  212. 


130  FALSE  PRETENCES.  [CHAP.  XIV. 

and  there  due  and  payable  for  the  carriage  and  porterage 
of  the  said  parcel ;  and  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  was  not  then  and  there  authorized  or  directed 
to  receive  or  take  the  sum  of  three  dollars  for  the  carriage 
and  porterage  of  the  said  parcel ;  and  whereas,  in  truth  and 
in  fact,  the  sum  of  one  dollar  and  no  more  was  then  and 
there  due  and  payable  for  the  carriage  and  porterage  of  the 
said  parcel,  as  the  said  A.  B.  then  and  there  well  knew ;  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


21.  Obtaining  money  by  rendering  a  false  account  of  work  done 
by  third  parties} 

The  jurors,  etc.,  upon  their  oath  present,  that  at  the  time 
of  the  making  the  false  pretences  hereinafter  mentioned,  A.  B. 
late  of  B.  in  the  county  of  S.,  was  the  servant  of  one  C.  D., 
and  that  it  was  the  duty  of  the  said  A.  B.  as  such  servant,  to 
render  a  true  and  correct  account  of  the  work  done  by  and 
money  due  to  the  workmen  of  the  said  C.  D.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  A.  B.  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  at  B.  aforesaid,  in  the  county  aforesaid,  unlawfully, 

knowingly,  and  designedly  did  falsely  pretend  to  the  said 
C.  D.  that  a  certain  account  kept  by  the  said  A.  B.,  and  then 
and  there  shown  by  him  to  the  said  C.  D.  was  a  true  and 
correct  account,  and  that  the  sum  of  one  hundred  dollars  was 
then  and  there  due  in  respect  of  work  performed  by  the  work- 
men of  the  said  C.  D.,  for  and  on  account  of  the  said  C.  D. ; 
by  means  of  which  said  false  pretences  tiie  said  A.  B.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  C.  D.  the  sum  of  ten  dollars,  of  the  moneys  of  the 
said  C.  D.,  with  intent  then  and  there  to  cheat  and  defraud 
the  said  C.  D.  of  the  same.  Whereas,  in  truth  and  in  fact, 
the  said  account  shown  by  the  said  A.  B.  to  the  said  C.  D. 
was  not  a  true  and  correct  account ;  and  whereas,  in  truth 

'  See  Kex  t;.  Milcbell,  2  East,  V.  C.  820. 


CHAP.  XIV.]  FALSE   PRETENCES.  131 

and  in  fact,  the  sura  of  fifty  dollars  was  not  then  and  there 
due  in  respect  of  work  performed  by  the  workmen  of  the  said 
C.  D.  for  and  on  account  of  the  said  C.  D.,  as  the  said  A.  B. 
then  and  there  well  knew ;  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


22.  Obtaining  money  by  falsely  pretending  that  a  member  of  a 

Friendly  Society  was  indebted  to  the  Society?- 

The  jurors,  etc.,  upon  their  oath  present,* that  at  the  time  of 
making  the  false  pretence  hereinafter  mentioned,  A.  B.  of  B. 
in  the  county  of  S.,  gentleman,  was  secretary  to  the  Earl  of 
Uxbridge  Lodge  of  Odd-Fellows  at  B.  aforesaid,  in  the  county 
aforesaid,  and  that  C.  D.  was  a  member  of  the  said  lodge. 
And  that,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  at  B.  aforesaid,  in  the  county  aforesaid,  the  said  A.  B. 

unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 
the  said  C.  D.  that  the  sum  of  five  dollars  was  then  due*from 
the  said  C.  D.  to  the  said  lodge ;  by  means  of  which  said 
false  pretence  the  said  A.  B.  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  C.  D.  the 
sum  of  five  dollars,  of  the  moneys  of  the  said  C.  D.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of 
the  same.  Whereas,  in  truth  and  in  fact,  the  sum  of  five  dol- 
lars was  not  then  due  from  the  said  C.  D.  to  the  said  lodge; 
and  whereas,  in  truth  and  in  fact,  the  sum  of  two  dollars  and 
no  more  was  then  due  from  the  said  C.  D.  to  the  said  lodge, 
as  the  said  A.  B.  then  and  there  well  knew ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

23.  Falsely  pretending  that  the  Rules  of  a  Friendly  Society 

had  been  duly  certified. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 


*  See  Kegina  v.  Woolley,  1  Denison,  C.  C.  559 ;  3  Carrington  &  Kirwan, 
98;  4  Cox,  C.  C.  193;  1  Eng.  Law  and  Eq.  Eep.  559;  1  Temple  &  Mew, 
C.  C.  279. 


132  FALSE  PRETENCES.  [CHAP.  XIV. 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,   at  B.  aforesaid,  in  the  county 

aforesaid,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  one  C.  D.  that  John  Tidd  Pratt,  Esquire,  the  bar- 
rister-at-law  for  the  time  being  appointed  to  certify  the  Rules 
of  the  Savings  Banks,  had  certified  that  the  Rules  of  a  cer- 
tain Friendly  Society,  that  is  to  say,  a  certain  Sick  Society, 
who  had  agreed  to  meet  at  the  house  of  the  said  C.  D.  at  B. 
aforesaid,  in  the  county  aforesaid,  were  in  conformity  to  law, 
and  with  the  provisions  of  the  Act  tenth  of  George  the  Fourth, 
chapter  fifty-six,  as  amended  by  the  Act  fourth  and  fifth  Wil- 
liam the  Fourth,  chapter  forty,  and  that  the  said  A.  B.  had 
paid  to  the  said  John  Tidd  Pratt  the  sum  of  fifty  dollars  for 
such  certificate ;  by  means  of  which  said  several  false  pre- 
tences the  said  A.  B.  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  obtain  from  the  said  C.  D.  the  sum  of 
twenty-five  dollars,  of  the  moneys  of  E.  F.,  with  the  intent 
thereby  then  and  there  to  cheat  and  defraud  the  said  E.  F. 
Whereas,  in  truth  and  in  fact,  the  said  John  Tidd  Pratt  had 
not  certified  that  the  Rules  of  the  said  Society  were  in  confor- 
mity to  law,  and  with  the  provisions  of  the  said  Act  the  tenth 
of  George  the  Fourth,  chapter  fifty-six,  as  amended  by  the 
Act  of  the  fourth  and  fifth  of  William  the  Fourth,  chapter 
forty,  as  the  said  A.  B.  then  and  there  well  knew ;  and  where- 
as, in  truth  and  in  fact,  the  said  Rules  had  not  at  any  time 
been  submitted  to  the  said  John  Tidd  Pratt  for  the  purpose 
of  his  so  certifying  as  aforesaid,  as  the  said  A.  B.  then  and 
there  well  knew ;  and  whereas,  in  truth  and  in  fact,  the  said 
A.  B.  had  not  paid  to  the  said  John  Tidd  Pratt  the  sum  of 
fifty  dollars,  or  any  sum  of  money  whatsoever  for  such  cer- 
tificate as  aforesaid ;  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


CHAP.  XIV.]  FALSE   PRETENCES.  133 


24.   Obtaining'  money  by  means  of  a  false  warranty  of  the 
iv eight  of  goods?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  trader,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.  that  a  certain  quantity  of  coals,  which  the 
said  A.  B.  then  and  there  delivered  to  the  said  C.  D.,  weighed 
one  ton  and  ten  hundred  weight,  and  that  the  said  coals  were 
then  and  there  worth  the  sum  of  fifteen  dollars ;  by  means  of 
which  said  false  pretences  the  said  A.  B.  did  then  and  there 
unlaw^fully,  knowingly,  and  designedly  obtain  from  the  said 

C.  D.  the  sum  of  fifteen  dollars,  of  the  money  of  the  said  C.  D., 
w'xXh  intent  then  and  there  to  cheat  and  defraud  the  said  C.  D. 
of  the  same.  Whereas,  in  truth  and  in  fact,  the  said  coals  did 
not  weigh  one  ton  and  ten  hundred  weight;  and  whereas,  in 
truth  and  in  fact,  the  said  coals  were  not  worth  the  sum  of 
fifteen  dollars ;  and  whereas,  in  truth  and  in  fact,  the  said 
coals  weighed  only  one  ton  and  five  hundred  weight,  and 
were  not  worth  more  than  twelve  dollars,  as  the  said  A.  B. 
then  and  there  well  knew ;  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

25.  Obtaining  money  by  a  false  warranty  of  goods? 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  trader,  on  the  first  day  of  June  in  the 
year  of  our  Lord  — ,  at  B.  aforesaid,  in  the  county  afore- 

^  "  Although  it  was  formerly  supposed  that  such  a  case  as  this  was  not  a  false 
pretence  within  the  statute,  it  is  quite  clear  that  it  is ;  and  there  never  was, 
in  fact,  any  express  decision  to  the  contrary ;  the  supposed  case  of  Rex  r. 
Read,  7  Carrington  &  Payne,  848,  on  which  such  a  notion  was  founded, 
never  having  been  considered   by  the  judges."      See  per  Lord  Denman, 

C.  J.,  in  Reglna  v.  Hamilton,  9  Queen's  Bench  Rep.  271  ;  2  Cox,  C.  C.  11. 
'  See  Regina  v.  Ball,  Carrington  &  Marshman,  249. 

12 


134  FALSE  PRETENCES.  [CHAP.  XIV. 

said,  unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.,  that  a-  watch  then  and  there  produced  by  the 
said  A.  B.,  and  offered  for  sale  to  the  said  C.  D.  was  a  silver 
watch,  and  was  then  and  there  of  the  value  of  fifty  dollars  ;  by 
means  of  which  said  false  pretences  the  said  A.  B.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  C.  D.  the  sum  of  fifty  dollars,  of  the  money  of  the 
said  C.  D.,  with  intent  then  and  there  to  cheat  and  defraud 
the  said  C.  T>.  of  the  same.  Whereas,  in  truth  and  in  fact,  the 
said  watch  was  not  a  silver  watch,  nor  was  the  same  then 
and  there  of  the  value  of  fifty  dollars,  as  the  said  A.  B.  then 
and  there  well  knew ;  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

26.  Falsely  pretending  that  goods  ivere  of  a  particular  quality} 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 
B.  in  the  county  of  S.,  trader,  at  the  time  of  the  making  of 
the  false  pretences  by  him  hereinafter  mentioned,  had  in  his 
possession  and  offered  for  sale,  divers  pounds  weight  of  cheese 
of  little  value  and  of  inferior  quality ;  and  also  had  in  his  pos- 
session divers  pieces  of  cheese  called  "  tasters,"  of  good  flavor, 
taste,  and  quality.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid;  do  further  present,  that  the  said  A.  B.,  being  so 
thereof  possessed,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  at  B.  aforesaid,  in  the  county  aforesaid,  unlawfully, 

knowingly,  and  designedly  did  falsely  pretend  to  one  C.  D. 
that  tlie  said  pieces  of  cheese  called  "tasters,"  which  the  said 
A.  B.  then  and  there  delivered  to  the  said  C.  D.,  were  part  of 
tlie  clicese  which  the  said  A.  B.  then  and  there  offered  for 
sale,  and  that  the  said  last-mentioned  cheese  was  of  good  and 
excellent  quality,  flavor,  and  taste,  and  that  every  pound 
weight  of  the  said  cheese  so  ofi'ered  for  sale  by  the  said  A.  B. 
was  (ff  1h(!  value  of  twelve  cents;  by  means  of  which  said 
false  pretences  the  said  A.  B.  did  then  and  there  unlawfully, 

>  Sen  R('f;ina  v.  Al.bott,  1    DcniHoii,  C.  C.  273;  2  Cox,  C.  C.  430;  2  Car- 
rin^toii  i<c  Kirwaii,  030. 


CHAP.  XIV.]  FALSE   PRETENCES.  135 

knowingly,  and  designedly  obtain  from  the  said  C.  D.  certain 
money,  to  wit,  the  sum  of  twenty  dollars,  of  the  moneys  of 
the  said  C.  D.,  with  intent  then  and  there  to  cheat  and  de- 
fraud the  said  C.  D.  of  the  same.  Whereas,  in  truth  and  in 
fact,  the  said  pieces  of  cheese  called  "  tasters,"  which  the  said 

A.  B.  delivered  to  the  said  C.  D.,  were  not  part  of  the  cheese 
which  the  said  A.  B.  offered  for  sale ;  and  whereas,  in  truth 
and  in  fact,  the  said  cheese  offered  for  sale  was  not  of  good 
and  excellent  quality,  flavor,  and  taste  ;  and  whereas,  in  truth 
and  in  fact,  every  pound  weight  of  the  said  cheese  offered 
for  sale  by  the  said  A.  B.  was  not  of  the  value  of  twelve 
cents,  as  the  said  A.  B.  then  and  there  well  knew;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

27.  Attempting  to  obtain  money  by  means  of  false  pretences. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 

B.  in  the  county  of  S.,  trader,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  C.  D.  that  the  said  A.  B.  was  then  and  there  sent  to 
the  said  C.  D.  by  one  E.  F.  to  request  the  loan  of  ten  dollars, 
and  that  the  said  E.  F.  desired  the  said  A.  B.  to  say  that 
the  said  E.  F.  would  repay  the  same  to  the  said  C.  D.  on 
the  next  following  day ;  by  means  of  which  said  false  pre- 
tences the  said  A.  B.  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  attempt  and  endeavor  to  obtain  from 
the  said  C.  D.  certain  money,  to  wit,  the  sum  of  ten  dollars 
of  the  moneys  of  the  said  C.  D.,  with  intent  then  and  there 
to  cheat  and  defraud  the  said  C.  D.  of  the  same.  Whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  sent  to  the  said 

C.  D.  by  the  said  E.  F.  to  request  the  loan  of  ten  dollars,  or 
any  other  sum  of  money ;  and  whereas,  in  truth  and  in  fact, 
the  said  E.  F.  did  not  say  or  desire  the  said  A.  B.  to  say 
that  the  said  E.  F.  would  repay  the  same  to  the  said  C.  D. 
on  the  next  following  day,  as  the  said  A.  B.  then  and  there 
well  knew ;  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


CHAPTER    XV. 


COMPOUNDING    OFFENCES. 


The  compounding  of  felonies  or  other  crimes  or  misde- 
meanors, however  they  may  affect  the  interests  of  individuals, 
is  illegal,  inasmuch  as  it  impedes  the  course  of  public  jus- 
tice ;  and  it  is,  therefore,  the  proper  subject  of  an  indictment.^ 
The  accepting  of  a  promissory  note,  signed  by  the  party 
guilty  of  larceny,  as  a  consideration  for  not  prosecuting,  is 
sufficient  to  constitute  the  offence.^ 

The  compounding  of  misdemeanors,  as  it  also  is  a  perver- 
sion or  defeating  of  public  justice,  is  in  like  manner  the  sub- 
ject of  an  indictment  by  the  common  law.^  In  England,  in 
some  cases  where  the  offence  principally  and  more  imme- 
diately affects  some  individual,  as  batteries  and  libels,  if  the 


'  1  Gabbett,  Crim.  Law,  240 ;  1  Hawkins,  P.  C.  ch.  7.  In  Massachusetts,  the 
Rev.  Sts.  cb.  128,  §  21,  provide  against  tak'nuj,  but  not  against  giving  a  gratu- 
ity on  an  agreement  to  compound  for  a  crime.  1  Deacon,  Crim.  Law,  267, 
2C8;  Rex  v.  Southerton,  C  East,  12G.  This  was,  indeed,  the  misdemeanor 
against  which  the  ancient  common  law  was  especially  directed,  particularly 
in  the  case  of  theft  or  robbery,  where  the  owner  of  the  thing  stolen  gives  a 
reward  for  its  restoration,  and  agrees  not  to  prosecute,  or  agrees  with  any 
one,  on  the  thing  being  restored,  to  ask  no  questions ;  that  is,  to  favor  the 
concealment  of  the  crime.  Report  of  the  Massachusetts  Criminal  Law  Com- 
missioners, Title,  Obstructing  and  Perverting  the  Course  of  Justice,  §  15,  note 
(c/). 

'  Common wcahli  o.  Pease,  10  Mass.  (Rand's  ed.),  91. 

'  Jones  V.  Rice,  18  Pickering,  410;  Collins  v.  Blantern,  2  Wilson,  349  ;  1 
Smith's  Leading  Cases,  (Am.  ed.  1852,)  11.3.  Edgecombe  v.  Rodd,  5  East, 
302;  Keir  v.  Lecman,  C  Queen's  Pcnch  Rej).  J08;  1  Deacon,  Crim.  Law, 
369. 


CHAP.  XV.]  COMPOUNDING   OFFENCES.  137 

public  remedy  by  prosecution  be  adopted,  the  court  will 
sometimes  permit  a  reference,  or  allow  the  defendant  "  to 
speak  with  the  prosecutor,"  as  it  is  termed,  before  any  judg- 
ment is  pronounced ;  and  if  the  prosecutor  declares  himself 
satisfied,  to  inflict  but  a  trivial  punishment.  But  this  is  not 
done  until  after  conviction,  and  the  reason  assigned  is,  that  it 
saves  the  prosecutor  the  trouble  and  circuity  of  a  civil  action 
to  recover  amends  for  his  private  injury.^  In  a  recent  English 
case,  after  a  review  of  the  authorities,  the  rule  was  laid  down, 
that  the  law  will  permit  a  compromise  of  all  offences,  though 
made  the  subject  of  a  criminal  prosecution,  for  which  offences 
the  injured  party  might  sue  and  recover  damages  in  an  action. 
But,  if  the  offence  is  of  a  public  nature,  no  agreement  can  be 
valid  that  is  founded  on  the  consideration  of  stifling  a  prose- 
cution for  it.2 

But  it  is  clear  that  every  thing  in  the  nature  of  compound- 
ing a  misdemeanor  must  have  the  sanction  of  the  court  before 
which  the  offender  is  brought  to  trial.^  "  The  power  to  stop 
prosecutions,"  said  Putnam,  J.,  "  is  vested  in  the  law-officers 
of  the  Commonwealth,  who  use  it  with  prudence  and  discre- 
tion. If  it  were  given  to  the  party  injured,  who  might  be  the 
only  witness  who  could  prove  the  offence,  he  might  extort  for 
his  own  use  money  which  properly  should  be  levied  as  a  fine 
upon  the  criminal  party  for  the  use  of  the  Commonwealth."* 
But  where  after  an  alleged  compounding,  it  appeared  that  the 
party  charged  had  afterwards  prosecuted  for  the  felony  to  con- 
viction, an  acquittal  was  directed.^ 

*  1  Gabbett,  Crim.  Law,  241.  In  some  of  the  United  States,  provision  is 
made  by  statute,  for  compromising  certain  misdemeanors,  in  certain  cases. 
See  Rev.  Sts.  of  Mass.  eh.  136,  §  25,  2G ;  St.  1846,  cb.  198. 

*  Keir  y.  Leeman,  6  Queen's  Bench  Rep.  308  (1844). 

*  Beeley  v.  Wingfield,  11  East,  46.  See  Kingsbury  i'.  Ellis,  4  Gushing, 
578,  580. 

*  Jones  V.  Rice,  18  Pickering,  440,  441. 

*  Rex  V.  Stone,  4  Garrington  &  Payne,  379.  "In  some  of  the  precedents, 
the  allegation  that  the  party  has  not  prosecuted  the  offender  is  omitted,  but 
it  may  be  a  question,  ■whether  an  indictment  so  framed  ■would  be  good ;  be- 
cause the  offence  against  the  public  is  not  the  taking  of  money  from  a  thief, 

12* 


138  COMPOUNDING   OFFENCES.  [CHAP.  XV. 

Compounding  informations  on  penal  statutes  is  an  offence 
at  common  law.^ 


Indictment  for  compounding'  a  felony? 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 

wit,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

B.  in  the  county  of  S.,  one  A.  the  wife  of  J.  N.  feloniously 
stole,  took,  and  carried  away  one  silver  tankard,  of  the  value 
of  fifty  dollars,  of  the  goods  and  chattels  of  one  J.  S. ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided.  And  that  the 
said  J.  S.  late  of  B.  aforesaid,  in  the  county  aforesaid,  laborer, 
well  knowing  the  said  felony  to  have  been  by  the  said  A.  so 
as  aforesaid  done  and  committed,  but  contriving  and  intend- 
ing unlawfully  and  unjustly  to  pervert  the  due  course  of  law 
and  justice  in  that  behalf,  and  to  cause  and  procure  the  said 
A.,  for  the  felony  aforesaid,  to  escape  with  impunity,  after- 
wards,^  to  wit,  on  the  day  and  year  aforesaid,  at  B.  aforesaid, 
In  the  county  aforesaid,  unlawfully,  and  for  wicked  gain's 
sake,  did  compound  the  said  felony  with  the  said  J.  N.  the 
husband  of  the  said  A.,  and  then  and  there  did  exact,  take, 
receive,  and  have  of  the  said  J.  N.  the  sum  of  ten  dollars,  for 
and  as  a  reward  for  compounding  the  said  felony,  and  desist- 
ing from  all  further  prosecution  against  the  said  A.  for  the 
felony  aforesaid ;  and  that  the  said  J.  S.  on  the  day  and  year 


Lilt  tlie  letting  such  thief  escape  without  punishment.  Indeed,  if  this  alle- 
gation had  been  mere  surplusage,  and  put  in  as  matter  of  aggravation,  as  is 
sometimes  done  in  indictments  for  misdemeanor,  the  learned  judge  would  not 
have  stopped  the  case  on  this  objection."     Reporters'  note  to  Ilex  r.  Stone. 

*  liootliiiy,  Crim.  Law,  (London  cd.  1854,)  80  ;  1  Gabbett,  Crim.  Law, 
241  ;  1  Deacon,  Crim.  Law,  2G9. 

-  Anlil.old,  dim.  PI.  (Am.  cd.  1846),  G93 ;  Matthews'  Crim.  Law,  450. 

'  WJiere  the  f<.'lony  was  laid  on  a  day  suliscquent,  in  date,  to  that  on  which 
it  wa.s  cliargcd  to  have  l)cen  ((luiiiotinclcd,  although  charged  to  have  been 
comi)Oundcd  "  afterwards,"  juilgniciit  was  arrested.  The  State  v.  Dandy,  1 
Brevard,  305. 


CHAP.  XV.]  COMPOUNDING   OFFENCES.  139 

aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did  there- 
upon desist,  and  from  that  time  hitherto  hath  desisted,  from 
all  further  prosecution  of  the  said  A.  for  the  felony  aforesaid ; 
to  the  great  hinderance  of  justice,  and  against  the  peace  of 
said  Commonwealth. 


CHAPTER    XVI. 


CONSPIRACY. 

An  indictment  for  a  conspiracy  generally  charges,  that  the 
defendants  "  did  conspire,  combine,  confederate,  and  agree 
together ; "  though  it  seems  that  other  words  of  the  same 
import  would  be  equally  proper.^  "  The  peculiar  character  of 
this  offence,"  said  Dewey,  J.,  in  the  case  of  Commonwealth 
V.  Eastman,^  which  is  a  leading  case  in  Massachusetts,  "has 
fully  justified,  in  certain  cases  of  conspiracy,  a  departure  from 
the  ordinary  rules  of  criminal  pleading.  The  means  proposed 
to  be  used  to  effect  a  criminal  purpose  are  not,  in  all  cases,  to 
be  set  out,  and  are  not,  in  all  cases,  required  to  be  proved  ; 
nor  are  they  a  necessary  element  of  the  crime  of  conspiracy. 
To  a  certain  extent,  the  rules  upon  the  subject  are  un contro- 
verted. If  the  alleged  conspiracy  be  an  unlawful  agreement 
of  two  or  more  persons  to  do  a  criminal  act,  which  is  a  well- 
known  and  recognized  offence  at  common  law,  so  that  by 
reference  to  it  as  such,  and  describing  it  by  the  term  by  which 
it  is  familiarly  known,  the  nature  of  the  offence  is  clearly  indi- 
cated, in  such  a  case,  a  charge  of  conspiracy  to  commit  the 
offence,  describing  it  in  general  terms,  will  be  proper. 

"  On  the  other  hand,  if  the  agreement  or  combination  be  to 
do  an  act,  which  is  not  unlawful  in  itself,  by  the  use  of 
unlawful  means,  those  means  must  be  particularly  set  forth, 
or  the  indictment  will  be  bad.  The  question  of  doubt,  and 
upon  which  there  are  conflicting  authorities,  is  the  case  of  a 
conspiracy  to  do  a  wrongful  act,  in  violation  of  the  rights  of 

'  1  (Inhl.ctt,  Crim.  Law,  253  ;  1  Deacon,  Crim.  Law,  209. 
*  1  Cuuhing,  IHO,  223,  (lbl8). 


CHAP.  XVI.]  CONSPIRACY.  141 

another,  including  under  the  denomination  of  wrongful  acts, 
those  which  are  unlawful,  because  they  are  in  violation  of 
some  statute  provision,  but  which  are  not  offences  at  common 
law."  In  this  case,  the  principle  was  adopted,  and  since 
affirmed,^  that  if  the  object  of  the  conspiracy  be  to  do  an  act 
which  is  an  offence  merely  by  statute,  the  intended  purpose 
must  in  such  case  be  set  forth  with  so  much  detail,  as  may  be 
necessary  to  bring  it  within  the  description  of  the  statute 
offence.  And,  as  the  words  "  cheat  and  defraud "  do  not 
necessarily  import  any  offence,  either  by  statute  or  at  common 
law,  therefore  an  indictment  for  a  conspiracy,  in  which  the 
object  is  alleged  to  be  to  "  cheat  and  defraud,"  must  set  forth 
in  detail  such  further  allegations,  as  will  show  the  object  to 
be  an  offence,  either  by  statute  or  at  common  law.^     In  Rex 

^  Commonwealth  r.  Shedd,  7  Cushlng,  514,  (1851). 

*  In  this  case  it  was  held  not  to  be  a  sufficient  statement  of  the  offence,  in 
an  indictment  for  a  conspiracy  to  cheat,  to  allege  that  the  defendants  con- 
spired together  to  cheat  and  defraud  C.  D.  of  his  goods  ;  or  to  acquire  and 
get  into  their  possession  the  goods  of  C.  D.,  under  color  and  pretence  of  buy- 
ing the  same ;  or  to  get  possession  of  the  goods  of  C.  D.  upon  trust  and 
credit,  and  then  to  remove  and  transport  them  out  of  the  Commonwealth. 
In  delivering  the  opinion  of  the  Court  in  Commonwealth  v.  Shedd,  7  Cush- 
ing,  514,  Dewey,  J.,  said :  "  The  gist  of  the  offence  is  a  charge  of  conspiracy, 
being  the  act  of  conspiring  together,  and  not  the  acts  subsequently  done  in 
pursuance  thereof,  the  consequence  has  been  the  introduction  of  certain 
forms  of  charging  this  offence,  doubtful  in  their  character,  and  as  to  which 
there  has  not  been  an  entire  uniformity  of  decisions.  Under  the  idea  that 
the  conspiracy  is  alone  the  substantial  crime  charged,  the  practice  had 
become  somewhat  common  to  charge  the  offence  in  the  most  general  terms, 
as  that  of  a  conspiracy  to  the  prejudice  of  the  rights  of  others,  overlooking 
the  distinction,  whether  the  object  of  the  conspiracy  was  a  criminal  object,  or 
the  criminality  consisted  in  accomplishing  an  object,  not  in  itself  a  crime,  by 
criminal  means. 

"  The  recent  decisions  in  this  Commonwealth  have,  to  a  certain  extent  at 
least,  settled  what  was  before  a  matter  of  doubt,  and,  so  far  as  the  principles 
of  those  decisions  are  applicable  to  this  case,  they  must  govern  it.  1.  It  is 
well  settled  that  a  general  allegation,  that  two  or  more  persons  conspired  to 
effect  an  object  criminal  in  itself,  as  to  commit  a  misdemeanor  or  a  felony,  is 
quite  sufficient,  although  the  indictment  omits  all  charges  of  the  particular 
means  to  be  used.  2.  It  is  equally  well  settled,  that  a  general  charge  of  a 
conspiracy  to  effect  an  object  not  criminal,  is  not  sufficient.     The  charge  of 


142  CONSPIRACY.  [chap.  XVI. 

V.  Giiy  a  leading  English  case,  where  the  indictment  charged 

such  a  conspiracy  is  to  be  accompanied  with  the  further  statement  of  the 
means  the  conspirators  concerted  and  agreed  to  use  to  effect  the  object;  and 
those  means  must  ajipear  to  be  criminal.  3.  The  charge  of  a  conspiracy  to 
cheat  and  defraud  A.  does  not,  ex  vi  termini,  imjiort  a  criminal  object.  Cheat- 
ing and  defrauding  are  ambiguous  terms,  and  as  well  applicable  to  civil  con- 
tracts, as  to  injuries  inflicted  wholly  by  breach  of  criminal  law.  A  man  may 
cheat  and  defraud  another  in  the  sale  of  articles  of  merchandise,  and  yet  the 
case  be  one  of  civil  wrong  merely.  It  is  therefore  held,  that  it  is  not  enough 
to  charge  generally  the  purpose  of  the  conspiracy  to  be  '  to  cheat  and  de- 
fraud ; '  but  the  means  must  also  be  set  forth,  that  it  may  be  seen  that  it 
was  a  conspiracy  to  effect  the  proposed  object  by  illegal  means.  This  is 
directly  settled  in  the  cases  of  Commonwealth  v.  Eastman,  1  Gushing,  189, 
and  Commonwealth  v.  Hunt,  4  Metcalf,  111,  125.  Hence  it  results,  that  the 
general  charge  of  a  conspiracy  to  cheat  and  defraud  Joel  Church,  which  is 
the  form  of  the  present  indictment,  is  insuflicient,  and  that  the  indictment 
will  not  authorize  the'  Court  to  enter  a  judgment  and  sentence  thereon, 
unless  the  defect  is  aided  by  the  allegation  of  various  overt  acts  of  the  parties 
alleged  to  have  been  done  in  pursuance  of  the  conspiracy. 

"  The  view  which  the  Court  have  taken  of  this  question,  in  the  cases  of 
Commonwealth  v.  Hunt  and  Commonwealth  v.  Eastman,  seems  to  require, 
that  in  cases  of  indictment  for  conspiracy  the  offence  should  be  fully  charged, 
independently  of  any  overt  acts  alleged  to  have  been  done  in  pursuance  of 
the  conspiracy.  Thus,  in  the  case  of  Commonwealth  v.  Hunt,  it  is  said  by 
the  Court,  that  the  indictment  must  '  set  out  an  offence  complete  within 
itself,  without  the  aid  of  any  averment  of  illegal  acts  done  in  pursuance  of 
such  an  agreement ;  and  that  an  illegal  combination,  imperfectly  and  insuffi- 
ciently set  out  in  the  indictment,  will  not  be  aided  by  averments  of  acts  done 
in  pursuance  of  it.' 

"  The  great  difficulty  in  giving  effect  to  the  allegation  of  overt  acts,  in  an 
indictment  for  conspiracy,  on  a  motion  in  arrest  of  judgment  for  insufficiency 
of  the  indictment,  is  this ;  that  overt  acts  are  merely  alleged  by  way  of  aggra- 
vation of  the  offence,  and  though  alleged  they  need  not  be  proved,  and  the 
alleged  conspiracy  might  be  found  by  the  jury,  without  proof  of  the  precise 
overt  acts  charged  to  have  been  done  in  pursuance  of  the  conspiracy. 

"  Tlie  indictment  in  the  present  case,  charging  only,  in  general  terms,  a 
conspiracy  '  to  cheat  and  defraud  one  Joel  Church  of  divers  sums  of  money,' 
and  setting  forth  no  illegal  means,  agreed  upon  or  concerted  by  the  parties 
to  effect  the  same,  as  a  part  of  such  conspiracy,  but  merely  setting  forth  overt . 
acts  of  the  i)arties,  does  not  charge  a  conspiracy  to  do  a  criminal  act,  or  to 
effect  an  object  by  any  criminal  means  set  forth  upon  the  face  of  the  indict- 
ment." 

>  2  Harnewall  &  Aldcrson,  201,  (181H). 


CHAP.  XVI.]  CONSPIRACY.  143 

that  the  defendants  conspired,  by  divers  false  pretences,  and 
subtle  means  and  devices,  to  obtain  and  acquire  for  them- 
selves from  P.  D.  and  G.  D.  divers  large  sums  of  money,  of 
the  said  P.  D.  and  G.  D.  and  to  cheat  and  defraud  them 
thereof,  it  was  holden  that,  the  gist  of  the  offence  being  the 
conspiracy,  it  was  quite  sufficient  to  state  that  fact,  and  its 
object,  and  not  necessary  to  set  out  the  specific  pretences.^ 
This  case  has  been  repeatedly  examined  and  reviewed,  and 
may  now  be  regarded  as  the  settled  law,  in  England.^  But 
the  weight  of  authority,  in  America,  seems  to  be  strongly  in 


^  This  form  of  indictment  "  is  the  most  general  which  has  been  held  admis- 
sible." Per  Lord  Denman,  C.  J.,  in  Regina  v.  Parker,  3  Queen's  Bench  Rep. 
298.  In  the  same  case,  "Williams,  J.,  said,  ".It  has  been  always  thought  that 
in  Rex  v.  Gill,  the  extreme  of  laxity  was  allowed." 

2  Regina  v.  King,  7  Queen's  Bench  Rep.  782,  795,  (1844,  1845)  ;  Regina 
V.  Gompertz,  9  Queen's  Bench  Rep.  824,  (1846).  In  this  case,  as  reported 
in  2  Cox,  C.  C.  145,  155,  Lord  Denman,  C.  J.,  said,  "  One  count  at  least  is 
good,  on  the  authority  of  Rex  v.  Gill,  which  authority  has  never  been  over- 
ruled ;  it  is  founded  on  excellent  reason  given  by  Lord  Tenterden  and  Mr. 
Justice  Holroyd  in  that  case  ;  and  it  has  always  been  recognized,  though  not 
without  regret,  because  that  form  of  indictment  may  give  too  little  informa- 
tion to  the  accused ;  which  was  the  observation  made  in  Rex  v.  Biers,  1 
Adolphus  &  Ellis,  327.  But  even  from  expressions  there  used,  and  much  of 
what  has  been  said  in  later  cases,  it  appears  plainly  that  the  court  has  never 
doubted  the  correctness  of  the  decision  in  the  case  of  Rex  v.  Gill."  And  in 
Sydserff  I'.  Regina,  11  Queen's  Bench  Rep.  245,  (1847,)  Chief  Justice  Wilde 
said:  "  The  second  count  of  this  indictment  in  this  case  was  oly'ected  to  as 
being  too  general ;  and  Rex  v.  Biers  was  relied  on  in  support  of  the  objec- 
tion, and  as  overruling  Rex  v.  Gill,  from  which  we  think  the  present  case 
not  distinguishable.  But,  upon  referring  to  the  judgment  in  Rex  v.  Biers, 
there  appears  strong  reason  to  doubt  whether  it  did  not  go  wholly  on  the  one 
objection  to  the  special  counts.  Neither  Rex  v.  Gill,  nor  any  other  authority 
at  all  bearing  on  the  point,  was  referred  to  in  the  judgment ;  and  it  appears 
distinctly  from  the  recent  case  of  Regina  v.  Gompertz,  that  Rex  i'.  Biers  has 
never  been  considered  by  the  Court  of  Queen's  Bench  as  overruling  Rex  v. 
Gill."  And  see  Regina  v.  Parker,  3  Queen's  Bench  Rep.  202 ;  2  Gale  v. 
Davison,  709 ;  Rex  v.  Peck,  9  Adolphus  &  Ellis,  686 ;  1  Perry  v.  Davison, 
508;  Regina  v.  Kenrick,  5  Queen's  Bench  Rep.  49  ;  Davison  &  Merivale, 
208  ;  Rex  r.  Fowle,  4  Carrington  &  Payne,  592  ;  Rex  v.  Richardson,  1  Moody 
&  Robinson,  402  ;  Regina  v.  Whitehouse,  6  Cox,  C.  C.  38. 


144  CONSPIRACY.  [chap.  XVI. 

favor  of  the  doctrine  laid  down  in  Commonwealth  v.  East- 


man 


It  is  usual  to  set  out  the  overt  acts ;  that  is  to  say,  those 
acts  which  may  have  been  done  by  any  one  or  more  of  the 
conspirators,  in  order  to  effect  the  common  purpose  of  the 
conspiracy.  But  this  is  not  essentially  necessary ;  the  con- 
spiracy itself  is  the  offence ;  and  whether  any  thing  have  been 
done  in  pursuance  of  it  or  not,  is  immaterial.^ 

An  indictment  for  a  conspiracy  to  obtain  goods  by  false 
pretences,  is  insufficient,  unless  it  state  whose  property  the 
goods  were.^  If  the  indictment  be  general,  the  Court  will 
order  the  prosecutor  to  furnish  a  bill  of  particulars  of  the 
charges  to  be  relied  upon,  and  that  bill  of  particulars  should 
give  the  same  information  to  the  defendants  that  would  be 
given  by  a  special  count ;  but  the  Court  will  not  compel  him 
to  state  the  specific  acts  to  be  proved,  and  the  time  and  place 
at  which  they  are  alleged  to  have  occurred.* 


^  See  Commonwealth  v.  Hunt,  4  Metcalf,  111;  Hartmann  v.  The  Common- 
wealth, 5  Barr,  60;  Clary  v.  The  Commonwealth,  4  Barr,  210  ;  Twitchell  v. 
The  Commonwealth,  9  Barr,  211  ;  Lambert  v.  The  People,  9  Cowen,  578; 
The  State  v.  Roberts,  34  Maine,  320  ;  The  State  v.  Burnham,  15  New 
Hampshire,  396  ;  The  State  v.  Hewett,  31  Maine,  396  ;  The  State  v.  Ripley, 
31  Maine,  386.  See  The  State  v.  Rickey,  4  Halsted,  2f93.  See  also  The 
State  V.  Buchanan,  5  Harris  &  Johnson,  317. 

'  Commonwealth  r.  Eastman,  1  Cushing,  180;  Commonwealth  v.  Shedd,  7 
Cusliing,  514 ;  Regina  v.  Konrick,  5  Queen's  Bench  Rep.  49;  Davison  & 
Merivale,  208 ;  Rex  i'.  Seward,  1  Adolphus  &  Ellis,  706  ;  The  State  v.  Rip- 
Icy,  31  Maine,  386;  March  v.  The  People,  7  Barbour,  391;  Clary  v.  The 
Commonwealth,  4  Barr,  210;  Commonwealth  v.  McKisson,  8  Sergeant  & 
Puiwle,  420.  See  Regina  v.  King,  7  Queen's  Bench  Rep.  782,  808,  809  ; 
Wright  V.  R(!gina,  14  Queen's  Bench  Rep.  148 ;  Rex  v.  Spragg,  2  Burrow, 
099. 

'  Reirina  v.  Parker,  3  Queen's  Bench  Rep.  292;  2  C.ale  &  Davison,  709. 

*  Rex  V.  Hamilton,  7  Carrington  i^:  Payne,  448 ;  Regina  i'.  Rycroft,  G  Cox, 
C.  C.  76, (1852). 


CHAP.  XVI.]  CONSPIRACY.  145 


1.  For  a  conspiracy  to  indict  prosecutors  for  keepings  a  havjdy- 
house,  and  extorting-  money  from  them  on  condition  that 
suck  prosecution  should  be  foregone.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  W.  H.  late  of 
the  parish  of  Saint  Margaret,  Westminster,  in  the  county  of 
Middlesex,  and  within  the  jurisdiction  of  the  Central  Crim- 
inal Court,  laborer,  and  J.  P.  late  of  the  same  place,  laborer, 
wickedly  devising  and  intending  to  injure  one  T.  T.  one 
J.  W.  and  one  G.  G.,  and  to  extort  and  obtain  from  them 
divers  moneys,  heretofore,  to  wit,  on  the  twenty-third  day  of 

April,  in  the  year  of  our  Lord ,  at  the  parish  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  with  force  and  arms,  did  among 
themselves,  unlawfully,  wickedly,  and  corruptly  conspire,  com- 
bine, confederate,  and  agree  together  to  accuse,  charge,  and 
indict  the  said  T.  T.,  J.  W.,  and  G.  G.,  together  with  one 
M.  T.,  one  S.  W.,  and  one  M.  L.,  for  keeping  a  common 
bawdy-house,  and  by  means  of  such  charge,  accusation, 
and  indictment,  to  obtain  and  acquire  to  themselves  from 
the  said  T.  T.,  J.  W.,  and  G.  G.,  divers  of  the  moneys 
of  the  said  T.  T.,  J.  W.,  and  G.  G.  respectively,  and  to  de- 
prive them  thereof.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that,  in  pursuance  of  the 
said  conspiracy,  the  said  W.  H.  and  J.  P.  did  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  in  the  Court  of  our 
Lady  the  Queen,  before  the  Queen  herself,  then  hoklen  at 
Westminster,  in  the  county  of  Middlesex,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  prefer  a  bill 
of  indictment  to  a  certain  grand  jury  then  sworn  and  charged 
to  inquire  for  our  said  Lady  the  Queen,  for  the  body  of  the 
county  of  Middlesex,  against  the  said  T.  T.,  J.  W.,  G.  G., 
M.  T.,  S.  W.,  and  M.  L.,  for  keeping  a  common  bawdy-house, 
and  did  then  and  there  cause  the  said  grand  jury  to  find  and 
present  the  said  indictment  against  the  said   T.  T.,  J.  W., 

^  2  Cox,  C.  C.  Appendix,  p.  xxv. 

13 


146  CONSPIRACY.  [chap.  XVI. 

G.  G.,  M.  T.,  S.  W.,  and  M.  L. ;  to  the  great  damage  of  the 
said  T.  T.,  J.  W.,  and  G.  G.,  and  each  of  them,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  H.  and  J.  P.,  wick- 
edly devising  and  intending  as  aforesaid,  heretofore,  to  wit,  on 
the  day  and  year  aforesaid,  at  the  parish  and  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal  Court, 
did  again,  with  force  and  arms,  unlawfully,  wickedly,  and  cor- 
ruptly conspire,  combine,  confederate,  and  agree  together 
falsely  to  charge,  accuse,  and  indict,  and  procure  to  be  in- 
dicted, the  said  T.  T.,  J.  W.,  and  G.  G.,  for  keeping  a  com- 
mon bawdy-house,  and  by  means  of  such  charge,  accusation, 
and  indictment,  to  obtain  and  acquire  to  themselves  of  and 
from  the  said  T.  T.,  J.  W.,  and  G.  G.,  and  each  of  them, 
divers  of  the  moneys  of  the  said  T.  T.,  J.  W.,  and  G.  G., 
respectively ;  to  the  great  damage  of  the  said  T.  T.,  J.  W.,  and 
G.  G.,  and  each  of  them,  to  the  evil  example  of  all  others 
in  the  like  case  offending,  and  against  the  peace,  etc. 

Third  Coimt.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  H.  and  J.  P., 
wickedly  devising  and  intending  as  aforesaid,  heretofore,  to 
wit,  on  the  day  and  year  aforesaid,  at  the  parish  and  county 
aibri'said,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  did  again,  with  force  and  arms,  unlawfully, 
wickedly,  and  corruptly  conspire,  combine,  confederate,  and 
agi'ee  together  falsely  to  charge,  accuse,  and  indict,  and  pro- 
cure to  be  indicted,  the  said  T.  T.,  J.  W.,  and  G.  G.,  for  keep- 
ing a  common  bawdy-house  ;  to  the  great  damage  of  the 
said  '1\  T.,  J.  W.,  and  G.  G.,  and  each  of  them,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against 
the  peace,  etc. 

luiiiiili  (,'oiin/. —  And  Ihc  jin-ors  aforesaid,  upon  their  oath 
af(jrcsaid,  ch)  i'urthcr  j)rcs('nt,  Ihat  ilie  said  W.  II.  and  J.  P., 
wickedly  conlriving  and  intending  as  aforesaid,  heretofore,  to 
V\it,  on  the  (l;iy  and  year  aforesaid,  at  th(^  jiarish  and  county 
aforesaid,   and    within    Ihr.    iuristlicfion   t)f   the   said    Central 


CHAP.  XVI.]  CONSPIRACY.  147 

Criminal  Court,  did  again,  with  force  and  arms,  unlawfully 
and  corruptly  conspire,  combine,  confederate,  and  agree  to- 
gether, by  means  of  divers  false  pretences  and  subtle  means 
and  devices,  to  obtain  and  acquire  to  themselves  of  and  from 
the  said  T.  T.,  J.  W.,  and  G.  G.,  and  eacli  of  them,  divers  of 
the  moneys  of  the  said  T.  T.,  J.  W.,  and  G.  G.  respectively, 
and  to  cheat,  deprive,  and  defraud  them  thereof;  to  the  great 
damage  of  the  said  T.  T.,  J.  W.,  and  G.  G.,  and  each  of  them, 
to  the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

Fifth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  H.  and  J.  P., 
wickedly  contriving  and  intending  to  injure  one  J.  W.,  and 
to  extort  and  obtain  from  him  divers  moneys,  heretofore,  to 

wit,  on  the  sixteenth  day  of  July  in  the  year  of  our  Lord , 

at  the  parish  of  Saint  Margaret,  Westminster,  in  the  county  of 
Middlesex,  and  within  the  jurisdiction  of  the  Central  Criminal 
Court,  with  force  and  arms,  did,  betwee^j  themselves,  unlaw- 
fully, wickedly,  and  corruptly  conspire,  combine,  confederate, 
and  agree  together,  to  charge,  accuse,  and  indict  the  said 
J.  W.,  together  with  one  F.  A.,  one  R.  J.,  one  M.  S.,  and  S.  G, 
for  keeping  a  common  bawdy-house,  and  also  a  common,  ill- 
governed,  and  disorderly  house,  and,  by  means  of  such  charge, 
aOTusation,  and  indictment,  to  obtain  and  to  acquire  to  them- 
selves from  the  same  J.  W.,  divers  of  the  moneys  of  the  said 
J.  W.,  and  to  deprive  him  thereof.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that,  in  pursu- 
ance of  the  said  conspiracy,  the  said  W.  H.  and  J.  P.  did 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
adjourned  general  quarter-sessions  of  the  peace  for  the  county 
of  Middlesex,  hoi  den  in  and  for  the  said  county  of  Mid- 
dlesex, at  the  Guildhall,  in  the  Broad  Sanctuary,  within 
the  city  and  liberty  of  Westminster,  in  the  said  county  of 
Middlesex,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  prefer  an  indictment  to  the  grand  jury,  then 
and  there  assembled  in  and  for  the  said  county  of  Middlesex, 
against  the  said  F.  A.,  J.  W.,  R.  J.,  M.  S.,  and  S.  G.,  for 
keeping  a  common  bawdy-house,  and  also  for  keeping  a  com- 


148  CONSPIRACY.  [chap.  XVI. 

mon,  ill-governed,  and  disorderly  house,  and  did  then  and  there 
cause  the  said  grand  jury  to  find  and  present'  the  said  indict- 
ment against  the  said  F.  A.,  J.  W.,  R.  J,,  M.  S.,  and  S.  G. ; 
to  the  great  damage  of  the  said  J.  W.,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  and  against  the  peace,  etc. 

Sixth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  H.  and  J.  P., 
wickedly  contriving  and  intending  as  last  aforesaid,  hereto- 
fore, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish 
last  aforesaid,  in  the  city,  liberty,  and  county  last  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  did  again,  with  force  and  arms,  unlawfully,  wickedly, 
and  corruptly  conspire,  combine,  confederate,  and  agree  to- 
gether to  charge,  accuse,  and  indict,  and  procure  to  be  indicted, 
the  said  J.  W.  for  keeping  a  common  bawdy-house,  and  also 
a  common,  ill-governed,  and  disorderly  house,  and  by  means 
of  such  charge,  accusation,  and  indictment,  to  obtain,  extort, 
and  acquire  to  themselves  of  and  from  the  said  J.  W.  divers 
of  the  moneys  of  the  said  J.  W.,  and  to  deprive  him  thereof; 
to  the  great  damage  of  the  said  J.  W.,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  and  against  the  peace,  etc. 

Seventh  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  H.  and  J.  P., 
wickedly  contriving  and  intending  as  last  aforesaid,  here'lo- 
fore,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish 
last  aforesaid,  within  the  city,  liberties,  and  county  last  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  did  again,  with  force  and  arms,  unlawfully  and  cor- 
ruptly conspire,  combine,  confederate,  and  agree  together,  by 
means  of  divers  false  pretences  and  subtle  means  and  devices, 
to  extort,  obtiiiii,  and  acquire  to  themselves  of  and  from  the 
said  J.  W.  divers  of  the  moneys  of  the  said  J.  W.,  and  to 
cheat,  deprive,  and  dcfrand  him  thereof;  to  the  great  damage 
of  the  said  J.  W.,  lo  Ihc  evil  example  of  all  others  in  the  like 
case  oMcnding,  and  against  the  {)eace,  etc, 

Ki<^lith  Count. —  And  Ww.  jurors  aforesaid,  upon  iheir  oath 
aforesaid,  do  furllicr  i)rcsful,  that  llic  said  W.  II.  and  J.  P., 
)i()t  regarding  llic   laws  of  this   Stale,  and  wiciicdly  and  cor- 


CHAP.  XVI.]  conspiracy:  149 

ruptly  devising  and  intending  to  pervert  the  same  laws  to 
unjust,  oppressive,  and  extortionate  ends  and  purposes,  here- 
tofore, to  wit,  on  the  twenty-thh-d  day  of  April,  in  the  year  of 

our  Lord ,  at  the  parish  of  Saint  Margaret,  Westminster, 

in  the  county  of  Middlesex,  and  within  the  jurisdiction  of  the 
said  Centra]  Criminal  Court,  unlawfully  did  conspire,  combine, 
confederate,  and  agree  together  to  cause  it  to  be  presented, 
upon  the  prosecution  of  the  said  W.  H.  and  J.  P.,  upon  the 
oaths  of  a  certain  grand  jury,  to  wit,  a  certain  grand  jury  then 
sworn  and  charged  to  inquire  for,  etc.,  for  the  body  of  the  said 
county  of  Middlesex,  in  the  Court  of,  etc.,  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  that  one  T.  T.,  one  J. 
W.,  and  one  G.  G.  had  kept,  and  then  were  keeping,  within  the 
said  county  of  Middlesex,  a  certain  common  bawdy-house, 
and  a  certain  common,  ill-governed,  and  disorderly  house,  to  the 
common  nuisance  of  the  liege  subjects  of  our  Lady  the  Queen, 
and  having  caused  the  said  presentment  to  be  made,  as  in  this 
count  aforesaid,  afterwards,  for  money,  lucre,  and  gain,  to  be 
paid,  made,  and  given  by  the  said  T.  T.,  J.  W.,  and  G.  G.,  to 
the  said  W.  H.  and  J.  P.,  corruptly,  unlawfully,  and  contrary 
to  the  due  course  of  law,  to  forego  and  altogether  abandon 
the  prosecution  of  the  said  presentment  and  indictment ;  to 
the  gain  and  jDrofit  of  the  said  W.  H.  and  J.  P.,  to  the  great 
hinderance  and  perversion  of  public  justice,  to  the  evil  ex- 
ample of  all  others  in  the  like  case  offending,  and  against  the 
peace,  etc. 

Ninth  Count. —  An,d  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  fiu-ther  present,  that  the  said  W.  H.  and  J.  P., 
not  regarding  the  laws  of  this  State,  and  wickedly  and  cor- 
ruptly devising  and  intending  to  pervert  the  same  laws  to 
unjust,  oppressive,  and  extortionate  ends  and  purposes,  here- 
tofore, to  wit,  on  the  sixteenth  day  of  July  in  the  year  of  our 

Lord  ,  at  the  parish  of  Saint  Margaret,  Westminster, 

in  the  city  and  liberty  of  Westminster,  in  the  county  of  Mid- 
dlesex, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  unlawfully  did  conspire,  combine,  confederate,  and  agree 
together  to  cause  it  to  be  presented  by  a  certain  grand  jury,  to 
wit,  then  sworn  and  charged  to  inquire  for  the  said   State, 

13* 


150  CONSPIRACY.  [CIIAP.  XVI. 

at  the  adjourned  general  quarter-sessions  of  the  peace  for 
the  county  of  IMiddlesex,  holden  in  and  for  the  said  county  of 
Middlesex,  at  the  Guildhall  in  the  Broad  Sanctuary,  within  the 
said  city  and  liberty  of  Westminster,  in  the  said  county  of  Mid- 
dlesex, and  within  the  jurisdiction  of  the  sai-d  Central  Criminal 
Court,  that  one  J.  W.  had  kept,  and  then  was  keeping,  within 
the  said  county  of  Middlesex,  a  certain  common  bawdy-house, 
and  a  certain  common,  ill-governed,  and  disorderly  house,  to 
the  common  nuisance  of  the  citizens  of  said  State,  and  hav- 
ing caused  the  said  last-mentioned  presentment  so  to  be  made 
afterwards,  for  money,  lucre,  and  gain,  to  be  paid  and  given 
by  the  said  J.  W.  to  the  said  W.  H.  and  J.  P.,  corruptly, 
unlawfully,  and  contrary  to  the  due  course  of  law,  to  forego 
and  altogether  to  abandon  the  prosecution  of  the  said  pre- 
sentment ;  to  the  gain  and  profit  of  the  said  W.  H.  and  J.  P., 
to  the  gi-eat  hinderance  and  perversion  of  public  justice,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

2.  For  a  conspiracy  to  defraud  a  Raihcay  Company^  by  travel- 
ling' luithout  a  ticket  on  some  portion  of  the  line,  obtaining 
a  ticket  at  an  intermediate  station,  and  then  delivering  it 
vp  at  the  terminus,  as  if  no  greater  distance  had  been 
travelled  over  by  the  passenger  than  from  such  inter- 
mediate station  to  the  terminus.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore 
and  before  and  at  the  time  of  the  committing  of  the  offence 
licrciiiaftcr  next  mentioned,  tlie  London  and  North- Western 
Railway  Company  us(';d,  worked,  and  employed  a  certain 
railway  called  the  London  and  North- Western  Railway,  for 
llic  piiiposc,  of  conveying  passengers  and  goods  thereon  for 
hire,  part  of  wliicli  said  railway  runs  from  a  certain  railway 
station  at  Birmingham,  in  the  county  of  Warwick,  to  a  cer- 
tain oilier  railway  station, called  the  Willesden  Station,  to  wit, 
at  Willesden,  in  the  county  of  Middlesex,  thence  to  a  certain 

*  4  Cox,  C.  C.  Appendix,  p.  xxxviii. 


CHAP.  XVI.]  CONSPIRACY.  151 

other  railway  station,  called  the  Camden  Station,  to  wit,  at 
the  parish  of  Saint  Pancras,  in  the  said  county  of  Middlesex, 
and  thence  to  a  certain  other  railway  station,  called  the  Eus- 
ton  Station,  to  wit,  at  the  parish  last  aforesaid,  in  the  county 
last  aforesaid.  That  at  the  time  of  the  committing  of  the 
offence  hereinafter  next  mentioned,  the  said  Company  were 
lawfully  entitled  to  have,  demand,  and  receive  of  and  from 
every  person  conveyed  by  the  said  Company  as  a  third  class 
passenger  over  that  part  of  the  said  railway  which  runs  from 
the  said  station  at  Birmingham  to  the  said  Willesden  Station, 
the  sum  of  two  dollars,  and  of  and  from  every  person  conveyed 
as  a  third  class  passenger  over  that  part  of  the  said  railway 
which  runs  from  the  said  Willesden  Station  to  the  said 
Euston  Station,  and  no  further  or  greater  distance,  the  sum  of 
twenty-five  cents.  That  before  and  at  the  time  of  the  commit- 
ting of  the  offence  hereinafter  next  mentioned,  the  said  Com- 
pany, upon  payment  of  the  proper  charges  in  that  behalf,  had 
been  and  were  in  the  habit  of  granting  to  persons  requiring  to 
be  conveyed  by  the  said  Company,  as  passengers  upon  the  said 
raihvay,  certain  tickets  denoting  the  railway  stations  from 
and  to  which  such  persons  respectively  might  require  to  be 
conveyed,  which  said  tickets,  when  delivered  up  to  the  said 
Company  at  the  said  stations,  denoted  thereupon  as  the  sta- 
tion to  which  such  persons  required  to  be  conveyed,  or  at  any 
other  station  between  such  last-mentioned  stations  and  the 
station  from  which  such  persons  respectively  required  to  be 
conveyed,  were  vouchers  in  favor  of  such  persons  delivering 
the  same,  and  denoted  and  were  accepted  and  received  by  the 
said  Company,  in  the  absence  of  notice  to  the  said  Company, 
as  vouchers  denoting  that  such  persons  had  paid  and  dis- 
charged all  the  proper  charges  due  to  the  said  Company  in 
respect  to  their  conveyance  as  passengers  upon  the  said  rail- 
way. That  heretofore  and  before  and  at  the  time  of  the  com- 
mitting of  the  offence  hereinafter  next  mentioned,  to  wit,  on 

the  fourth  day  of  January  in  the  year  of  our  Lord ,  one 

William  Williams,  at  his  own  request  and  instance,  had  been 
conveyed  by  the  said  Company  as  a  third  class  passenger 
over  that  part  of  the  said  railway  which  runs  from  the  said 


152  CONSPIRACY.  [chap.  XVI. 

station  at  Birmingham  to  the  said  Willesden  Station,  where- 
upon the  said  William  Williams  then  and  there  became  and 
was  justly  and  truly  indebted  to  the  said  Company  in  the 
said  sum  of  two  dollars,  and  which  said  sum  of  two  dollars 
the  said  Company  were  then  and  there  lawfully  entitled  to 
have,  demand,  and  receive  of  and  from  the  said  William  Wil- 
liams for  and  in  respect  of  such  his  conveyance  as  aforesaid. 

And  that  the  said  William  W^illiams,  late  of  the  parish  of 
Willesden,  in  the  county  of  Middlesex,  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  laborer,  and  Wil- 
liam Brown,  late  of  the  same  place,  laborer,  and  divers  other 
evil-disposed  persons  whose  names  to  the  jurors  aforesaid  are 
as  yet  unknown,  wickedly  devising  and  intending  to  cheat, 
deceive,  injure,  and  defraud  the  said  Company  in  the  prem- 
ises, afterwards,  to  wit,  on  the  day  and  year  aforesaid,  and 
whilst  the  said  William  Williams  was  so  justly  and  truly 
indebted  to  the  said  Company  as  aforesaid,  and  whilst  the 
said  Company  were  so  entitled  to  have,  demand,  and  receive 
of  and  from  the  said  William  Williams  the  said  sum  of  two 
dollars  as  aforesaid,  in  the  parish  of  Willesden  aforesaid,  in 
the  county  of  Middlesex  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  Central  Criminal  Court,  unlawfully  did  con- 
spire, combine,  confederate,  and  agree  together  to  purchase 
and  procure  of  the  said  Company,  at  the  said  Willesden  Sta- 
tion, for  the  sum  of  twenty-five  cents,  one  of  the  said  tickets, 
so  granted  by  them  as  aforesaid,  denoting  that  the  person  to 
whom  such  ticket  had  been  granted,  had  required  to  be  con- 
veyed from  the  said  Willesden  Station  to  the  said  Euston 
Station,  and  no  further  or  greater  distance  upon  the  said  rail- 
way, and  that  all  the  projK'r  moneys  due  to  the  said  Company 
in  respect  of  such  last-mentioned  conveyance,  had  been  })aid 
and  discharged.  And  afterwards,  that  the  said  William 
Williams  and  William  Brown  should  travel  together  on  the 
said  railway  from  IIk;  sai<l  Willesden  Slaiion  to  the  Camden 
Station,  and  tlicnce  tollu^said  l^jusion  Sia1  ion,  the  said  Cam- 
den Station  being  a  railway  station  l)t;twe(>n  the  said  Willesden 
Station  and  tlie  said  .l*iUstA)n  Station,  aiid  should  at  the  said 
Camden   Station  fraudulently  and  deceitfully  produce  such 


CHAP.  XVL]  CONSriRACY.  153 

ticket  to  the  said  Company  and  their  servants  as  a  ticket 
granted  to  the  said  William  Williams  at  the  commencement 
of  his  journey  upon  the  said  railway,  as  a  voucher  that  the 
said  William  Williams  had  paid  and  discharged  all  the 
proper  charges  due  to  the  said  Company  in  respect  of  the 
conveyance  of  the  said  William  Williams  upon  the  said  rail- 
way, and  as  well  by  means  of  the  said  ticket  as  by  divers 
false  pretences,  unlawfully,  deceitfully,  and  fraudulently  to 
cause  it  falsely  to  appear  to  the  said  Company  that  the  said 
William  Williams  had  not  been  conveyed  as  a  passenger  any 
greater  or  other  distance  upon  the  said  railway  than  from  the 
Willesden  Station  aforesaid  to  the  said  Camden  Station  ; 
and  that  the  said  William  Williams  had  paid  to  the  said 
Company  all  the  proper  charges  for  his  conveyance  as  a  pas- 
senger upon  the  said  railway,  and  fraudulently  and  deceitfully 
to  induce  and  persuade  the  said  Company  and  their  servants 
to  accept  and  receive  the  said  ticket  in  satisfaction  and  dis- 
charge of  all  and  every  the  charges  to  which  the  said  William 
Williams  was  then  and  there  liable  in  respect  of  such  his  con- 
veyance as  aforesaid,  and  as  a  voucher  to  the  effect  that  such 
charges  had  been  fully  paid  and  satisfied  to  the  said  Com- 
pany by  the  said  William  Williams,  and  in  manner  aforesaid 
to  deceive,  injure,  and  prejudice  the  said  Company,  and  to 
defraud  the  said  company  of  the  said  sum  of  two  dollars,  in 
which  the  said  William  Williams  was  so  indebted  as  afore- 
said, and  mutually  to  aid  and  assist  one  another  in  perfecting 
and  putting  in  execution  the  said  unlawful  and  wicked  con- 
spiracy, combination,  confederation,  and  agreement.  That 
the  said  W^illiam  Williams  and  William  Brown,  in  fraudu- 
lent collusion  with  the  said  other  evil-disposed  persons  in 
prosecution  and  pursuance  of  the  said  wicked  and  unlawful 
combination,  conspiracy,  confederacy,  and  agreement,  did,  on 

the  fourth  day  of  January  in  the  year  of  our  Lord ,  and 

whilst  the  said  William  Williams  was  indebted  as  aforesaid, 
purchase  and  procure  of  the  said  Company,  at  the  said  Wil- 
lesden Station,  for  the  sum  of  twenty-five  cents,  a  certain 
ticket  denoting  that  the  person  to  whom  such  ticket  had  been 
granted  had  required  to  be  conveyed  from  the  said  Willesden 


154  coxspiRACY.  [chap,  xvl 

Station  to  the  said  Enstoii  Station,  and  no  further  or  greater 
distance  on  the  said  railway,  and  had  paid  all  the  proper 
charges  for  such  conveyances,  and  afterwards  did  travel  again 
on  the  said  railway  to  the  said  Camden  Station,  being  a  rail- 
way station  between  the  said  Willesden  Station  and  the  said 
Euston  Station,  and  there  at  the  said  Camden  Station  did 
produce  and  deliver  the  said  ticket  to  one  William  Ludlow 
Penson,  then  and  there  being  a  servant  of  the  said  Company, 
as  a  ticket  granted  to  the  said  William  Williams  at  the  com- 
mencement of  his  journey  as  a  passenger  on  the  said  railway, 
and  unlavv^fully,  fraudulently,  deceitfully,  and  injuriously  offer 
the  said  ticket  to  the  said  William  Ludlow  Penson  as  a 
voucher  to  the  effect  that  all  the  charges  lawfully  to  be  made 
by  the  said  Company  upon  the  said  William  Williams  in 
respect  of  his  conveyance  upon  the  said  railway  had  been 
paid  and  discharged  by  the  said  William  Williams,  and  did 
thereby  then  and  there  endeavor  to  cheat  and  defraud  the 
said  Company  of  the  said  sum  of  two  dollars,  so  due  to 
them  from  the  said  William  Williams  for  such  conveyance 
of  the  said  William  Williams  to  the  said  Willesden  Station 
as  aforesaid ;  to  the  great  injury  and  deception  of  the  said 
Company,  to  the  evil  example,  etc.,  and  against  the  peace,  etc. 
Second  Count. —  That  heretofore,  and  before  and  at  the  time 
of  the  committing  of  the  offence  hereinafter  next  mentioned, 
the  said  William  Williams  was  justly  and  truly  indebted  to 
the  said  London  and  North- Western  Railway  Company  in 
the  sum  of  two  dollars,  for  the  conveyance  of  the  said  Wil- 
liam Williams  as  a  passenger  on  a  certain  part  of  the  said 
London  and  North-Wcstcrn  Railway  Company,  that  is  to 
say,  from  Birmingham,  in  the  county  of  Warwick,  to  Willes- 
den, in  the  said  county  of  Middlesex.  That  the  said  William 
Williams  and  William  Brown,  afterwards,  to  wit,  on  the  day 
and  year  aforesaid,  Ix'ing  jjossessed  of  a  certain  ticket  of  no 
value  to  Uie  said  ('oinpaiiy,  granted  by  the  said  Company, 
and  denoting  that  the  person  iiaving  possession  thereof  was  en- 
liljcd  1()  !)(■  conveyed  i)y  the  said  Company  on  a  certain  other 
j)art  of  tin;  said  railway,  that  is  to  say,  from  Willesden  afore- 
said to  the  said  railway  station  called  the  Camden  Station, 


CUAP.  XVI.]  CONSPIRACY.  155 

and  thence  to  the  said  station  called  the  Euston  Station,  free 
of  all  charge  for  and  in  respect  of  such  conveyance  ;  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  and  whilst  the 
said  William  Williams  was  so  justly  and  truly  indebted  as 
last  aforesaid,  at  the  parish  of  Saint  Pancras  aforesaid,  in  the 
.  county  of  Middlesex  aforesaid,  and  within  the  jurisdiction  of 
the  said  Central  Criminal  Court,  unlawfully  and  wickedly  did 
conspire,  combine,  confederate,  and  agree  together,  and  with 
divers  other  evil-disposed  persons,  whose  names  to  the  jurors 
aforesaid  are  as  yet  univnown,  unlawfully,  knowingly,  fraudu- 
lently, and  deceitfully  falsely  to  pretend  and  to  cause  it 
falsely  to  appear  to  the  said  Company  and  their  servants  that 
the  said  William  Williams  had  been  conveyed  by  the  said 
Company  no  further  or  other  distance  on  the  said  railway 
than  from  Willesden  aforesaid  to  the  said  station  called  the 
Camden  Station,  and  that  the  said  William  Williams  was 
not  indebted  to  the  said  Railway  Company,  or  liable  to  pay 
them  any  sum  of  money  for  his  conveyance  upon  the  said 
railway,  and  by  the  false  pretences  and  appearances  in  this 
count  aforesaid,  to  induce  and  persuade  the  said  Company 
and  their  said  servants  to  accept  and  receive  the  said  ticket 
in  this  count  mentioned,  as  a  voucher  to  the  effect  that  all 
claims,  charges,  and  demands  of  the  said  Company  on  the 
said  William  Williams,  in  respect  of  such  conveyance  as  a 
passenger  on  the  said  railway,  had  been  fully  paid  and  dis- 
charged, and  for  and  in  full  satisfaction  of  all  claims,  charges, 
and  demands  whatsoever  of  the  said  Company  upon  the  said 
William  Williams,  for  his  conveyance  as  a  passenger  on 
the  said  railway,  and  thereby  unlawfully,  wrongfully,  un- 
justly, and  fraudulently  to  enable  the  said  William  Williams 
to  avoid,  escape,  evade,  and  elude,  and  with  intent  then  and 
there  that  the  said  William  Williams  should  thereby  unlaw- 
fully, wrongfully,  injuriously,  and  fraudulently  avoid,  escape, 
evade,  and  elude  the  payment  of  the  said  sum  of  two  dollars, 
so  due  to  the  said  company  as  in  this  count  aforesaid,  and  to 
hurt,  injure,  deceive,  prejudice,  and  defraud  the  said  Company 
in  manner  in  this  count  mentioned;  to  the  great  injury,  etc., 
and  against  the  peace,  etc. 


156  COXSPIRACY.  [chap.  XVI. 

Third  Count.  —  That  heretofore,  and  before  and  at  the  time 
of  the  committing  of  the  offence  hereinafter  next  mentioned, 
the  said  William  "Williams  was  indebted  to  the  said  London 
and  North- Western  Railway  Company  in  a  certain  sum  of 
money,  to  wit,  the  sum  of  two  dollars,  and  that  the  said  Wil- 
liam Williams  and  William  Brown,  being  evil-disposed  per- 
sons, afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
parish  of  Willesden  aforesaid,  in  the  county  of  Middlesex 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  unlawfully  and  wickedly  did  conspire,  com- 
bine, confederate,  and  agree  together,  and  with  divers  other 
evil-disposed  persons,  whose  names  to  the  jurors  aforesaid  are 
as  yet  unknown,  b}^  divers  false  pretences,  and  by  divers 
crafty,  indirect,  false,  fraudulent,  and  deceitful  acts,  ways, 
means,  devices,  sti'atagems,  and  contrivances,  to  enable  the 
said  William  Williams  to  avoid,  escape,  evade,  elude,  and 
withhold  the  payment  of  the  said  sum  of  two  dollars  to  the 
said  Company,  and  to  cheat,  defraud,  and  altogether  deprive 
the  said  Company  of  the  said  debt  in  this  count  mentioned, 
and  of  all  profit,  benefit,  and  advantage  to  the  said  Company 
arising  and  to  arise  from  the  same  ;  to  the  great  injury  and 
deception  of  the  said  Company,  to  the  evil  and  pernicious 
example,  etc.,  and  against  the  peace,  etc. 

2.' For  a  conspiracy  to  induce  a  person  of  unsound  mind  to 
sign  a  paper  authorizing'  the  defendants  to  take  possession 
of  Ids  goods} 

The  jurors,  etc.,  upon  their  oath  present,  that  E.  C.  late  of 
the  parish  of  Barnes,  in  the  county  of  Surrey,  spinster,  and 
J.  C.  the  elder,  late  of  the  parish  and  county  aforesaid,  laborer, 
and  B.,  his  wife,  late  of  tlie  same  place,  J.  C.  the  younger, 
late  of  the  |);irish  and  coiiiily  aforesaid,  laborer,  and  J.  S.  late 
of  tin;  parisli  and  county  aforesaid,  laborer,  and  W.  K.  late 
of  th(!  parish  and  county  aforesaid,  lal)orcr,  and  C.  C^.,  other- 
wise calli'd    (!.  I<\,  l;itf;   of  the    |);u-isli    and    comity    aftiresaid, 

'  1  Cox,  C.  C.  Appendix,  p.  xxvii. 


CHAP.  XVI.]  CONSPIRACY.  l^? 

laborer,  on  the  twentieth  day  of  November  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  the  parish  of  Barnes,  in 

the  county  of  Surrey,  and  within  the  jurisdiction  of  the  Cen- 
tral Criminal  Court,  unlawfully  and  wickedly  and  maliciously 
did  conspire,  combine,  confederate,  and  agree  together,  to  de- 
fraud one  J.  R.  of  certain  cattle,  goods,  and  chattels,  of  great 
value,  to  wit,  of  the  value  of  one  hundred  pounds,  and  then 
and  there  to  ol^ain  and  acquire  the  same  to  themselves.   And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  E.  C,  J.  C.  the  elder,  and  S.  his  wife,  J.  C. 
the  younger,  J.  S.,  W.  K.,  and  C.  C,  otherwise  called  C.  F.,  in 
pursuance  of  the  said  conspiracy,  did  on  the  day  and  year 
aforesaid,  at  the  parish  and  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  Court,  fraudulently  induce  and  procure 
the  said  J.  R.  to  sign  a  paper  writing,  purporting  to  authorize 
them  to  take  possession  of  and  sell  the  said  cattle,  goods,  and 
chattels,  the  said  J.  R.  then  and  there  being  of  unsound  mind, 
and  weak  and  diseased  in  body,  and  wholly  incapable  of 
understanding,  and  not  understanding  the  meaning  and  effect 
of  the  said  paper  writing.     And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  E.  C,  J.  C. 
the  elder,  and  S.  his  wife,  J.  C.  the  younger,  J.  S.,  W.  K.,  and  C. 
C,  otherwise  called  C.  F.,  in  further  pursuance  of  the  said  con- 
spiracy, did,  on  the  day  and  year  aforesaid,  and  within  the 
jurisdiction  of  the  said  Court,  with  force  and  arms,  at,  etc.,  and 
under  color  and  pretence  of  the  said  paper  writing  so  signed  by 
the  said  J.  R.  as  aforesaid,  seize  and  take  possession  of  divers 
cattle,  goods,  and  chattels,  to  wit,  one  horse,  one  cart,  five 
chairs,  five  tables,  of  the  said  J.  R,  of  great  value,  to  wit,  of 
the  value  of  one  hundred  pounds,  and  did  then  and  there 
carry  away,  sell,  dispose  of,  and  convert  the  same  to  their 
own  use ;  to  the  great  damage  of  the  said  J.  R.,  to  the  evil 
example  of  all  others,  and  against  the  peace,  etc. 

Second  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  E.  C,  and  J.  C.  the 
elder,  and  S.  his  wife,  J.  C.  the  younger,  J.  S.,  W.  K.,  and  C. 
C,  otherwise  called  C.  F.,  contriving  to  injure  the  said  J.  R., 
and,  as  much  as  in  them  lay,  unlawfully  to  ruin  him  in  his  trade 

14 


158  CONSPIRACY.  [chap.  XVI. 

and  business  of  a  laundress,  which  he  then  and  there  used,  exer- 
cised, and  carried  on,  and  to  prevent  and  hinder  him  from  using, 
exercising,  and  carrying  on  the  said  trade  and  business  in  as 
full,  ample,  and  beneficial  a  manner  as  he  was  used  and 
accustomed  to  do,  on  the  twentieth  day  of  November  in  the 

year  of  our  Lord ,  at  the  parish  aforesaid,  in  the  county 

aforesaid,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  unlawfully,  wickedly,  and  maliciously  did 
conspire,  combine,  confederate,  and  agree  together,  with  divers 
indirect,  subtle,  and  fraudulent  means  and  devices,  to  injure, 
oppress,  and  impoverish  the  said  J.  E..,  and  wholly  to  prevent 
and  hinder  him  from  using,  exercising,  and  carrying  on  his 
said  trade  and  business  of  a  laundress ;  to  the  great  damage 
of  the  said  J.  R.,  to  the  evil  example  of  all  others  in  the  like 
case  offending,  and  against  the  peace,  etc. 

Third  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  E.  C,  J.  C.  the 
elder,  and  S.  his  wife,  J.  C.  the  younger,  J.  S.,  W.  K.,  and 
C.  C,  otherwise  called  C.  F.,  on  the  day  and  year  last  afore- 
said, at  the  parish  and  county  aforesaid,  and  within  the  juris- 
diction of  the  Central  Criminal  Court,  with  force  and  arms,  at, 
etc.,  unlawfully,  wickedly,  and  maliciously  did  again  conspire, 
combine,  confederate,  and  agree  together,  by  divers  indirect, 
subtle,  and  fraudulent  means  and  devices,  to  injure,  oppress, 
impoverish,  and  wholly  ruin  R.  R.,  and  wholly  to  prevent  and 
hinder  him  from  carrying  on  his  trade  and  business  of  a  laun- 
dress, which  he  then  and  there  exercised  and  carried  on ;  to 
the  gi'eat  damage  of  the  said  R.  R.,  to  the  evil  and  pernicious 
example  of  all  others  in  the  like  case  offending,  and  against 
th(,'  peace,  etc. 

4.  For  conspiracy  to  defeat  the  course  of  public  justice,  by  giv- 
ing-  false  evidence,  and  suppressing-  facts,  on  an  inquiry 

into  a  cliargr  (f felony  l>eforc  a  mag'istrate} 

The   jurors,  clc,   upon   Ihcir  oath  j)r('S('nJ,  that   before  the 
*  5  Cox,  C.  C.  Appendix,  p.  ix. 


CHAP.  XVI.]  CONSPIRACY.  159 

commission  of  the  offence  by  W.  C.  and  R.  C,  hereinafter 
mentioned  to  have  been  committed  by  them,  one  F.  S.  had 
been  charged  before  J.  T.,  Esquire,  one  of  the  magistrates  of 
the  Police  Courts  of  the  metropolis,  sitting  at  the  Police 
Court,  Greenwich,  in  the  county  of  Kent,  and  within  the 
metropolitan  police  district,  on  suspicion  of  having  committed 
a  certain  felony,  to  wit,  of  having  feloniously  broken  and 
entered  the  dwelling-house  of  one  J.  M.,  and  stolen  therein 
divers  goods,  chattels,  and  moneys  of  the  said  J.  M.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  at  the  time  of  the  commission  of  the  offence  hereinafter 
alleged  to  have  been  committed  by  the  said  W.  C.  and  R.  C, 
to  wit,  on  the  thirtieth  day  of  September  in  the  year  of  our 

Lord ,  at  the  parish  of  Greenwich,  in  the  county  of  Kent, 

the  said  W.  C.  and  R.  C.  knew  and  were  acquainted  with 
divers  matters,  facts,  circumstances,  and  things  material  to  be 
inquired  into  by  the  said  J.  T.,  as  such  magistrate  as  afore- 
said, and  touching  and  concerning  the  said  charge  and  the 
said  subject-matter  thereof,  all  and  every  of  which  said  mat- 
ters, facts,  circumstances,  and  things  it  then  and  there  was 
the  duty  of  the  said  W.  C.  and  R.  C.  to  make  known  and 
reveal  to  the  said  J.  T.,  as  such  magistrate  as  aforesaid,  and 
which  the  said  W.  C.  and  R.  C.  were  then  and  there  required 
on  her  Majesty's  behalf  by  the  said  J.  T.,  as  such  magistrate 
as  aforesaid,  to  make  known,  discover,  and  reveal  to  the  said 
J.  T.,  as  such  magistrate  as  aforesaid.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the 
said  W.  C.  late  of  the  parish  of  Greenwich,  in  .the  county  of 
Kent,  laborer,  and  R.  C.  late  of  the  same  place,  laborer,  being 
evil-disposed  persons,  and  contriving  and  intending  as  much 
as  in  them  lay  to  pervert  the  due  course  of  law  and  justice, 
and  not  regarding  their  said  duty  in  that  behalf,  on  the  said 
thirtieth  day  of  September  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  unlawfully  did  conspire, 
combine,  confederate,  and  agree  together  to  deceive  the  said 
J.  T.,  so  being  such  magistrate  as  aforesaid,  in  the  premises, 
and  to  withhold  and  conceal  from  the  said  J.  T.  the  said  mat- 
ters, facts,  circumstances,  and  things,  and  falsely  to  represent 


160  CONSPIRACY.  [chap.  XVI. 

to  the  said  J.  T.,  so  being  such  magistrate  as  aforesaid,  that 
they  and  each  of  them  the  said  W.  C.  and  R.  C.  were  igno- 
rant of  all  the  said  several  matters,  facts,  circumstances,  and 
things,  and  falsely  to  swear  before  the  said  J.  T.,  to  the  effect 
last  aforesaid,  and  by  such  false  swearing  and  divers  deceit- 
ful, false,  and  indirect  means,  ways,  and  methods,  to  perfect 
and  put  into  effect  the  said  wicked  conspiracy,  combination, 
confederacy,  and  agreement,  and  to  procure  the  said  J.  T.,  as 
such  magistrate  as  aforesaid,  to  dismiss  the  said  charge,  and 
mutually  to  aid  and  assist  one  another  in  perfecting  and  put- 
ting in  execution  the  said  wicked  conspiracy,  combination, 
confederacy,  and  agreement ;  to  the  evil  and  pernicious 
example  of  all  other  persons  in  the  like  case  offending,  and 
against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  C,  on  the  said 
thirtieth  day  of  September  in  the  year  aforesaid,  at  the  parish 
of  Greenwich  aforesaid,  in  the  county  of  Kent  aforesaid, 
unlawfully  did  conspire,  combine,  confederate,  and  agree 
together,  and  with  divers  other  persons,  whose  names  to  the 
jurors  aforesaid  are  unknown,  wilfully  and  corruptly  to  give 
false  evidence,  and  wilfully  and  corruptly  to  swear  that  which 
was  false,  upon  the  examinations  upon  oath  of  the  said  W. 
C.  and  R.  C,  before  the  said  J.  T.  Esquire,  then  being  one  of 
the  magistrates  of  the  Police  Courts  of  the  metropolis,  acting 
at  one  of  the  said  Courts,  to  wit,  at  the  Greenwich  Police 
Court,  in  the  county  of  Kent,  touching  and  concerning  a  cer- 
tain charge  then  depending  before  the  said  J.  T.,  to  wit,  a 
charge  against  one  F.  S.,  of  having  feloniously  broken  and 
entered  a  certain  dwelling-house  of  one  J.  M.,  and  stolen 
therein  divers  goods,  chattels,  and  moneys  of  the  said  J.  M. ; 
to  the  great  and  pernicious  example  of  all  others  in  the  like 
case  olifri(]ing,  to  th(^.  manifest  perversion  of  public  justice, 
and  against  the  j)eace,  etc. 


CHAP.  XVI.]  CONSPIRACY.  161 


5.  For  a  conspiracy  by  the  maker  of  two  promissory  notes,  and 
livo  other  persons,  fraudulently  to  obtain  the  said  notes 
from  the  holder.^ 

First  Count. —  The  jurors,  etc.,  upon  their  oath  present, 
that  B.  C.  W.  late  of  the  parish  of  Saint  Martin-in-the-Fields, 
in  the  county  of  Middlesex,  laborer,  L.  P.  G.  late  of  the  same 
place,  laborer,  and  J.  M.  late  of  the  same  place,  laborer,  wick- 
edly devising  and  intending  to  cheat,  deceive,  and  defraud 
one  E.  L.  H,,  on  the  twentieth  day  of  March  in  the  year  of 

our  Lord ,  with  force  and  arms,  at  the  parish  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  did,  amongst  themselves,  unlawfully  conspire, 
combine,  confederate,  and  agree  together,  by  divers  false  pre- 
tences and  subtle  means  and  devices,  to  obtain  and  acquire 
to  themselves  of  and  from  the  said  E.  L.  H.  divers  valuable 
.securities  of  the  said  E.  L.  H. ;  that  is  to  say,  a  certain  prom- 
issory note  for  the  payment  of  six  thousand  dollars,  made  by 
the  said  J.  M. ;  and  a  certain  other  promissory  note  for  the 
payment  of  five  thousand  dollars,  made  by  the  said  J.  M. 
And  that,  in  pursuance  of  the  aforesaid  conspiracy,  com- 
bination, and  confederacy  and  agreement  amongst  them 
as  aforesaid,  the  said  B.  C.  W.,  afterwards,  to  wit,  on  the 
twenty-sixth  day  of  March  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  did  falsely,  fraudulently,  and  deceitfully  pre- 
tend to  the  said  E.  L.  H.  that  the  said  B.  C.  W.  had  a  friend 
who  wished  to  invest  twenty  thousand  dollars  in  the  said 
J.  M.'s  paper,  meaning  thereby  that  the  said  B.  C.  W.  had  a 
friend  who  was  willing  and  desirous  to  discount  bills  of  ex- 
change accepted  by,  or  promissory  notes  made  by,  the  said 
J.  M.  to  the  amount  of  twenty  thousand  dollars,  and  by  which 
friend  the  said  B.  C.  W.  could  and  would  procure  the  said 
promissory  note  of  and  belonging  E.  L.  H.  to  be  discounted, 
by  means  of  which  said  false  pretences,  in  pursuance  of  the 

^  1  Cox,  C.  C.  Appendix,  p.  xiiL 

14* 


162  CONSPIRACY.  [chap.  XVI. 

aforesaid  conspiracy,  combination,  confederacy,  and  agree- 
ment, the  said  B.  C.  W.,  L.  P.  G.,  and  J.  M.,  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  did  unlawfully,  falsely,  fraudulently,  and  deceitfully 
obtain,  acquire,  and  get  into  their  hands  and  possession  the 
said  promissory  notes  of  and  belonging  to  the  said  E.  L.  H. ; 
whereas,  in  truth  and  in  fact,  the  said  B.  C.  W.  had  not  any 
friend  or  other  person  who  wished  to  invest  twenty  thousand 
dollars,  or  any  other  sum  of  money,  in  the  said  J.  M.'s  paper, 
or  by  whom  he  could  procure  the  said  promissory  notes  of 
the  said  E.  L.  H.  to  be  discounted ;  and  whereas,  in  truth  and 
in  fact,  the  said  B.  C.  W.  did  not  procure  the  said  promissory 
notes  to  be  discounted ;  and  whereas,  in  truth  and  in  fact,  the 
said  B.  C.  W.  did  not  intend  to  procure  the  said  promissory 
notes  to  be  discounted ;  but,  on  the  contrary  thereof,  with- 
drew himself  with  the  said  promissory  notes ;  to  the  great 
damage  of  the  said  E.  L.  H.,  and  against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  B.  C.  W.,  L.  P.  G., 
and  J.  M.,  wickedly  devising  and  intending  to  cheat,  deceive, 
and  defraud  the  said  E.  L.  H.,  afterwards,  to  wit,  on  the  said 
twentieth  day  of  March  in  the  year  aforesaid,  with  force  and 
arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  did,  amongst  them- 
selves, unlawfully  conspire,  combine,  confederate,  and  agree 
together,  by  divers  false  pretences  and  subtle  means  and 
devices,  to  obtain  and  acquire  to  themselves  of  and  from  the 
said  E.  L.  H.  divers  valuable  securities  of  the  said  E.  L.  H. ; 
that  is  to  say,  a  certain  promissory  note  for  the  payment  of 
five  thousand  dollars,  made  by  the  said  J.  M.,  and  a  certain 
other  promissory  note  for  the  payment  of  five  thousand  dol- 
lars, made  by  the  said  J.  M.  And  that,  in  pursuance  of  the 
aforesaid  conspiracy,  combination,  confederacy,  and  agree- 
ment amongst  tliem  so  had  as  aforesaid,  the  sjjid  B.  C.  W. 
afterwards,  to  wit,  on  the  twenty-sixth  day  of  March  in  the 
y(;ar  aforesaid,  at  the  jiarish  aforesaid,  in  llic  county  aforesaid, 
and   within  the  jurisdiction  of  the  said   court,  did  falsely, 


CHAP.  XVI.]  CONSPIRACY.  163 

fraudulently,  and  deceitfully  pretend  to  the  said  E.  L.  H.  that 
the  said  B.  C.  W.  had  a  friend  who  was  willing  and  desirous 
to  discount  any  bills  of  exchange  accepted  or  promissory 
notes  made  by  the  said  J.  M.  to  the  amount  of  twenty  thou- 
sand dollars,  and  that  he  could  and  would  procure  the  said 
promissory  notes  of  the  said  E.  L.  H.,  so  made  by  the  said 
J.  M.  as  aforesaid,  to  be  discounted  by  the  said  friend  of 
the  said  B.  C.  W. ;  by  means  of  which  false  pretences,  in 
pursuance  of  the  aforesaid  conspiracy,  combination,  confed- 
eracy, and  agreement,  the  said  B.  C.  W.,  L.  P.  G.,  and  J.  M., ' 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  did  falsely,  fraudulently,  and  deceit- 
fully obtain,  acquire,  and  get  into  their  hands  and  possession 
the  said  promissory  notes  of  the  said  E.  L.  H. ;  whereas,  in 
truth  and  in  fact,  the  said  B.  C.  W.  had  not  any  friend  or 
other  person  who  was  willing  or  desirous  to  discount  bills  of 
exchange  accepted,  or  promissory  notes  made  by  the  said 
J.  M.  to  the  amount  of  twenty  thousand  dollars,  or  any 
amount  whatever;  and  whereas,  in  truth  and  in  fact,  the  said 
B.  C.  W.  did  not  procure  the  said  promissory  notes  to  be  dis- 
counted ;  and  whereas,  in  truth  and  in  fact,  the  said  B.  C.  W. 
did  not  intend  to  procure  the  said  promissory  notes  to  be  dis- 
counted, but  on  the  contrary  thereof,  withdrew  himself  with 
the  said  promissory  notes ;  to  the  great  damage  of  the  said 
E.  L.  H.,  and  against  the  peace,  etc. 

Third  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  B.  C.  "W.,  L.  P.  G., 
and  J.  M.,  wickedly  devising  and  intending  to  cheat,  deceive, 
aiid  defraud  the  said  E.  L.  H.,  afterwards,  to  wit,  on  the 

said  twentieth  day  of  March  in  the  year  of  our  Lord , 

with  force  and  arms,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did, 
amongst  themselves,  unlawfully  conspire,  combine,  confed- 
erate, and  agree  together,  by  divers  false  pretences  and  subtle 
means  and  devices,  to  obtain  and  acquire  to  themselves  of 
and  from  the  said  E.  L.  H,  divers  valuable  securities  of  the 
said  E.  L.  H.,  that  is  to  say,  a  certain  promissory  note  for  the 


164  CONSPIRACY.  [chap.  XVI. 

payment  of  six  thousand  dollars,  and  of  the  value  of  six 
thousand  dollars,  and  a  certain  other  promissory  note  for  the 
payment  of  five  thousand  dollars,  and  of  the  value  of  five 
thousand  dollars ;  to  the  great  damage  of  the  said  E.  L.  H., 
and  against  the  peace,  etc. 


6.  Against  two  persons  for  conspiracy  to  procure  the  defilement 
of  a  young  female} 

The  jurors,  etc.,  upon  their  oath  present,  that  W.  G.  Smith 
late  of  the  parish  of  Lambeth,  in  the  county  of  Surrey,  and 
within  the  jurisdiction  of  the  said  court,  laborer,  and  Frances 
Foreman,  otherwise  called  Fanny  Foreman,  late  of  the  same 
place,  single  woman,  being  evil-disposed  persons,  and  contriv- 
ing and  wickedly  and  unlawfully  intending  to  debauch,  cor- 
rupt, and  procure  the  defilement  of  one  Mary  Ann  Lutttnan, 
and  to  injure  and  to  aggrieve  the  said  Mary  Ann  Luttman, 
heretofore  and  after  the  passing  of  an  Act  of  Parliament 
made  and  passed  in  tke  session  of  Parliament  holden  in  the 
twelfth  and  thirteenth  years  of  the  reign  of  her  present 
Majesty  Queen  Victoria,  entitled  "  An  Act  to  Protect  Women 
from  Fraudulent  Practices  for  Procuring  their  Defilement," 
to  wit,  on  the  first  day  of  February  in  the  year  of  our  Lord 

,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 

within  the  jurisdiction  of  the  said  court,  unlawfully  and  wick- 
edly did  conspire,  combine,  confederate,  and  agree  together, 
unlawfully  against  the  statute  in  that  behalf,  by  divers  false 
pretences,  false  representations,  and  other  fraudulent  means 
to  procure  a  certain  person,  to  wit,  one  Mary  Ann  Luttman, 
then  and  there  being  a  child  under  the  age  of  twenty-one 
years,  to  wit,  of  the  age  of  fifteen  years,  to  have  illicit  carnal 
connection  witli  a  man,  to  wit,  the  said  W.  G.  Smith,  and 
that  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  the  said  Frances  Foreman,  other- 
wise called  Fanny  Foreman,  in  pursuance  of  the  said  conspir- 

'  5  Cox,  C.  C.  Appendix,  p.  viii. 


CHAP.  XVI.]  CONSPIRACY.  165 

acy  and  agreement,  unlawfully  and  by  certain  false  pretences, 
false  representations,  and  other  fraudulent  means,  to  wit,  by 
then  and  there  falsely  and  fraudulently  pretending  and  repre- 
senting to  the  said  Mary  Ann  Luttman,  that  the  said  Frances 
Foreman,  otherwise  called  Fanny  Foreman,  was  desirous  of 
employing  and  would  employ  the  said  Mary  Ann  Luttman 
to  do  certain  w^ork  for  the  said  W.  G.  Smith  for  hire  and 
reward  to  the  said  Mary  Ann  Luttman,  and  by  persuading 
and  inducing  the  said  Mary  Ann  Luttman,  by  means  of  such 
false  pretences  and  representations,  to  accompany  the  said 
Frances  Foreman,  otherwise  called  Fanny  Foreman,  to  the 
house  of  the  said  W.  G.  Smith,  did  procure  the  said  Mary 
Ann  Luttman  then  and  there  to  have  illicit  carnal  connection 
with  the  said  W.  G.  Smith  ;  to  the  great  damage,  etc.,  of  the 
said  Mary  Ann  Luttman,  to  the  evil  example  of  all  others  in 
said  like  case  offending,  and  against  the  peace,  etc. 

7.  For  a  conspiracy  to  procure  the  defilement  of  a  female.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  Mary  Ann 
Mears,  late  of  B.  in  the  county  of  S.,  single  woman,  and 
Amelia  Chalk,  late  of  the  same  place,  laborer,  on  the  first 

day  of  June  in  the  year  of  our  Lord  ,  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  did  between 
themselves  conspire,  combine,  confederate,  and  agree  together 
wickedly,  knowingly,  and  designedly  to  procure,  by  false  pre- 
tences, false  representations,  and  other  fraudulent  means,  one 
Johanna  Carroll,  then  being  a  poor  child  under  the  age  of 
twenty-one  years,  to  wit,  of  the  age  of  fifteen  years,  to  have 
illicit  carnal  connection  with  a  man,  to  wit,  a  certain  man 
whose  name  is  to  the  jurors  aforesaid  unknown;  against  the 
peace,  etc. 


^  This  count  was  held  to  sufficiently  charge  an  Indictable  offence  at  com- 
mon law,  in  Regina  v.  Mears,  1  Temple  &  Mew,  C.  C.  414  ;  2  Denis  on,  C. 
C.  79 ;  4  Cox,  C.  C.  423 ;  1  Eng.  Law  and  Eq.  Rep.  581. 


166  CONSPIRACY.  [chap.  XVI. 


8.  For  coyispin'ng'  wrong;fidly  to  charge  the  inhabitants  of  a 
parish  ivith  the  maintenance  of  a  child} 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  P.  late  of 
the  parish  of  Saint  Luke,  in  the  county  of  Middlesex,  baker, 
and  Caroline,  his  wife,  and  divers  other  persons  whose  names 
are  to  the  jurors  aforesaid  unknown,  wrongfully,  fraudulently, 
and  unjustly  devising  and  intending  to  charge  the  inhabitants 
of  the  parish  of  Saint  Andrew,  Holborn,  in  the  city  of  London, 
with  the  maintenance  of  a  certain  male  child,  of  very  tender 
years,  to  wit,  of  the  age  of  one  day,  whose  name  is  to  the 
jurors  aforesaid  unknown ;  and  also  wrongfully,  fraudulently, 
and  unjustly  devising  and  intending  to  obstruct  and  hinder 
the  church-wardens  and  overseers  of  the  poor  of  the  said  parish 
of  Saint  Andrew,  Holborn,  from  discovering  the  person  legally 
liable  to  maintain  the  said  child  ;  and  also  wrongfully,  fraud- 
ulently, and  unjustly  devising  and  intending  to  obstruct  and 
hinder  any  legal  proceedings  which  the  church-wardens  and 
overseers  of  the  poor  of  the  said  parish  might  desire  to  adopt 
against  the  person  legally  liable  as  aforesaid,  for  the  purpose 
of  compelling  such  person  to  maintain  the  said  child  when 
the  same  should  become  chargeable  to  the  said  parish,  on  the 

eleventh  day  of  February,  in  the  year  of  our  Lord ,  with 

force  and  arms,  in  the  parish  of  Saint  Andrew,  Holborn,  in 
the  city  of  London,  within  the  jurisdiction  of  this  court,  did 
among  themselves  conspire,  combine,  confederate,  and  agree 
together,  to  cause  the  said  child  to  be  left  at  and  in  the  work- 
house of  the  said  last-named  parish,  situate  in  the  parish  of 
Saint  Sepulchre,  in  the  city  of  London,  and  within  the  juris- 
diction of  this  court,  to  be  there  maintained  at  the  expense  of 
the  inhabitants  of  the  said  parish  of  Saint  Andrew,  Holborn, 
and  so  and  in  such  manner  that  the  church-wardens  and  over- 
seers of  the  said  parisli  might  not  be  able  to  ascertain  or  dis- 
cover the  person  legally  liahh;  to  maintain  the  said  ehild,  nor 
to  adopi  any  legal   ))roce('dings  against  sueh  j)erson  so  liable 

'  1  Cox,  C.  C.  Appendix,  p.  xi. 


CHAP.  XVI.]  CONSPIRACY.  167 

as  aforesaid,  for  the  purpose  of  compelling  such  person  to 
maintaiji  the  said  child.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  J.  P.  and  Car- 
oline, his  wife,  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, in  the  parish  of  Saint  Andrew,  Holborn,  in  the  city  of 
London  aforesaid,  and  within  the  jurisdiction  of  this  court,  in 
pursuance  of  and  according  to  the  said  conspiracy,  combina- 
tion, confederacy,  and  agreement  had  as  aforesaid  among 
themselves  and  the  said  other  persons  whose  names  are  to  the 
jurors  aforesaid  unknown,  and  with  the  view  and  object  of 
carrying  the  same  into  eftect,  did  hire  and  employ  one  M.  J., 
wife  of  W.  J.,  of  the  parish  of  Saint  Andrew,  Holborn  afore- 
said, laborer,  for  a  certain  reward  to  her  in  that  behalf,  to  wit, 
for  the  sum  of  five  pounds  of  lawful  money  of  Great  Britain, 
to  take  the  said  child  into  the  care  and  custody  of  the  said 
M.  J.,  and  to  keep  the  same,  to  wit,  in  the  said  parish  of  Saint 
Andrew,  Holborn,  for  a  few  days,  to  wit,  three  days,  and  at 
the  expiration  thereof,  to  deliver  and  leave  the  said  child  at 
and  in  the  workhouse  of  the  said  last-named  parish,  situate 
as  aforesaid,  in  order  that  the  said  child  might  then  and 
there  be  maintained  in  the  said  workhouse  at  the  expense  of 
the  inhabitants  of  the  parish  of  Saint  Andrew,  Holborn  afore- 
said. And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  J.  P.  and  Caroline  his  wife, 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  in  the  par- 
ish of  Saint  Andrew,  Holborn,  in  the  county  of  Middlesex, 
and  within  the  jurisdiction  of  this  court,  in  pursuance  of  and 
according  to  the  said  conspiracy,  combination,  confederacy, 
and  agreement  had  as  aforesaid  among  themselves  and  the 
said  other  persons  whose  names  are  to  the  jurors  aforesaid 
unknown,  and  with  the  view  and  object  of  carrying  the  same 
into  effect,  did  deliver  the  said  child  to  the  said  M.  J.  for  the 
purpose  aforesaid,  the  said  M.  J.  being  then  and  there  wholly 
ignorant  of  the  respective  names  and  addresses  of  the  said 
J.  P.  and  Caroline,  his  wife,  and  of  the  said  other  persons  so 
conspiring  and  intending  as  aforesaid,  whose  names  are  to 
the  jurors  aforesaid  unknown,  as  the  said  J.  P.  and  Caroline, 
his  wife,  then  and  there  well  knew,  and  the  said  M.  J.  then  and 


168  CONSPIRACY.  [chap.    XVI. 

there  being  wholly  ignorant  of  the  name  and  address  of  the 
said  person  legally  liable  to  maintain  the  said  child,  and  not 
herself  being  such  person  as  the  said  J.  P.  and  Caroline,  his 
wife,  then  and  there  well  knew ;  to  the  evil  example  of  all 
others  in  the  like  case  offending,  and  against  the  peace,  etc. 


9.  For  conspiracy  to  defraud  intending  emigrants  of  their  pas- 
sage-money  by  pretending  to  have  an  interest  in  certain 
ships} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  J.  T.  late 
of  the  city  of  London,  laborer,  and  H.  G.  M.,  late  of  the  same 
place,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  the  parish  of  ,  in  the 

city  of  London,  and  within  the  jurisdiction  of  the  Central 
Criminal  Court,  together  with  divers  other  evil-disposed  per- 
sons, to  the  jurors  aforesaid  unknown,  unlawfully,  fraudu- 
lently, and  deceitfully  did  combine,  conspire,  confederate,  and 
agree  together  to  open  a  certain  office,  as  and  for  the  office  of 
a  pretended  company,  called  the  "  Australian  Gold  and  Gen- 
eral Mining  Company,"  and  by  falsely  and  fraudulently  rep- 
resenting to  J.  J.,  J.  G.,  and  T.  B.,  that  the  said  company  had 
chartered  divers  vessels,  for  the  purpose  of  conveying  passen- 
gers to  Port  Philip,  in  Australia,  and  that  the  said  C.  J.  T. 
and  the  said  H.  G.  M.  were  authorized  by  the  said  company 
to  sell  and  dispose  of  berths  to  persons  contracting  to  become 
passengers  on  board  the  said  vessels,  to  obtain  of  and  from 
the  said  J.  J.,  J.  G.,  and  T.  B.,  divers  large  sums  of  money  of 
the  moneys  of  the  said  J.  J.,  J.  G.,  and  T.  B.  respectively, 
and  to  cheat  and  defraud  them  thereof.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  London 
aforesaid,  and  within  Ihe  jurisdiction  of  the  said  court,  the 
said  C.J.  T.  and  the  said  II.  G.  M.,  togeilior  with  Ihe  other 
evil-disposi.'d  persons  to  the  jurors  aforesaid  unkiiowii,  in  pur- 
suance' of  the  said   conspiracy,  comhinat ion,  and  agreement 

^  G  Cox,  C.  C.  Appendix,  p.  Ixxxi. 


CHAP.  XVI.]  CONSPIRACY.  169 

SO  had  by  and  amongst  them  as  aforesaid,  did  then  and  there 
open  a  certain  office  in  the  said  city  of  London,  and  did 
then  and  there  falsely  and  fraudulently  pretend  and  advertise 
that  the  said  office  was  the  office  of  a  certain  company  then 
and  there  established  for  the  pvirpose  of  promoting  the  emi- 
gration of  her  Majesty's  liege  subjects  to  parts  beyond  the 
seas,  called  the  "  Australian  Gold  and  General  Mining  Com- 
pany," to  wit,  at  London  aforesaid,  and  within  the  jurisdiction 
of  the  said  court.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  afterwards,  to  wit,  on  the 
same  day  and  year  aforesaid,  at  London  aforesaid,  and  within 
the  jurisdiction  of  the  said  court,  the  said  C.  J.  T.  and  the 
said  H.  G.  M.,  in  pursuance  of  the  said  conspiracy,  combina- 
tion, and  agreement  so  had  and  made  between  themselves 
and  the  other  evil-disposed  persons  aforesaid,  did  falsely  pre- 
tend to  the  said  J.  J.,  J.  G.,  and  T.  B.,  that  divers*  vessels, 
and,  amongst  others,  certain  vessels  called  respectively,  the 
"Camilla,"  the  "  Medicis,"  and  the  "Janet  Mitchell,"  had 
been  chartered  by  the  said  company  to  convey  passengers 
from  the  port  of  London  to  Port  Philip  in  Australia,  and  that 
the  said  C.  J.  T.  and  H.  G.  M.  had  full  and  legal  power  and 
authority  to  secure  and  provide  for  the  conveyance  of  the 
said  J.  J.,  J.  G.,  and  T.  B.  as  passengers  on  board  the  said 
vessels,  or  some  or  one  of  them ;  by  means  of  which  said 
false  pretences  and  of  the  premises  in  this  count  mentioned, 
and  in  pursuance  of  the  conspiracy,  combination,  and  agree- 
ment aforesaid,  the  said  C.  J.  T.  and  H.  G.  M.  did  then  and 
there  mnlawfuUy  and  fraudulently  obtain  of  and  from  the 
said  J.  J.  the  sum  of  eleven  pounds  in  money  of  the  moneys 
of  the  said  J.  J.,  of  the  said  J.  G.  the  sum  of  nine  pounds  in 
money  of  the  moneys  of  the  said  J.  G.,  and  of  the  said  T.  B. 
the  sum  of  thirty  pounds  in  money  of  the  moneys  of  the  said 
T.  B.,  with  intent  then  and  there  to  cheat  and  defraud  the  said 
J.  J.,  the  said  J.  G.,  and  the  said  T.  B.,  of  the  said  sums  of 
money  of  the  moneys  of  the  said  J.  J.,  the  said  J.  G.,  and  the 
said  T.  B.  respectively ;  to  the  great  damage,  injury,  and  de- 
ception of  the  said  J.  J.,  the  said  J.  G.,  and  the  said  T.  B.,  and 
against  the  peace,  etc. 

15 


170  CONSPIRACY.  [CIIAP.  XVI. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C.  J.  T.  and  H.  G. 
M.  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  in  the 
city  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
together  with  divers  other  evil-disposed  persons  to  the  jurors 
aforesaid  unknown,  unlawfully,  fraudulently,  and  deceitfully 
did  combine,  conspire,  confederate,  and  agree  together  by 
divers  false  pretences  and  subtle  means  and  devices  to 
cause  it  to  be  believed,  that  a  certain  company  was  estab- 
lished at  a  certain  office  in  the  said  city,  to  wit,  for  the  pur- 
pose of  promoting  the  emigration  of  her  Majesty's  liege  sub- 
jects to  parts  beyond  the  seas,  and  that  the  said  C.  J.  T.  and 
H.  G.  M.  were  the  agents  of  and  for  the  said  company,  and 
that  the  said  company  had  then  chartered  certain  ships  to  sail 
from  London  to  a  place  beyond  the  seas,  to  wit,  Australia, 
and  that  the  said  C.  J.  T.  and  H.  G.  M.  then  could,  as  such 
agents  of  and  for  the  said  company,  contract  for  the  carrying 
of  passengers,  and  provide  that  passengers  should  be  carried 
by  the  said  ships,  chartered  by  the  said  company,  from  Lon- 
don to  Australia  as  aforesaid,  and  by  means  of  the  said  belief 
to  obtain  from  divers  liege  subjects  of  our  Lady  the  Queen, 
to  wit,  J.  J.,  J.  G.,  and  T.  B.,  divers  large  sums  of  money  of 
the  moneys  of  the  said  J.  J.,  of  the  moneys  of  the  said  J.  G., 
and  of  the  moneys  of  the  said  T.  B.,  and  to  cheat  and  defraud 
the  said  J.  J.,  J.  G.,  and  T.  B.,  of  their  said  moneys  respec- 
tively ;  and  in  pursuance  of  the  said  last-mentioned  conspir- 
acy, the  said  C.  J.  T.  and  H.  G.  M.  did  then  and  there  open 
an  office  in  the  said  city  of  London,  and  falsely  pretend  that 
it  was  the  office  of  the  said  company,  and  the  said  C.  J.  T. 
and  II.  G.  M.,  at  the  said  office,  in  pursuance  of  the  said 
last-mentioned  conspiracy,  then  and  there  falsely  and  deceit- 
fully prctcnided  that  they  were  the  agents  of  and  for  the  said 
company,  that  the  said  company  had  then  chartered  certain 
ships  to  sail  from  London  to  a  place  beyond  the  seas,  to  wit, 
Australia,  and  that  the  said  C.J.  T.  and  II.  G.  M.  then  could, 
as  such  agents  of  and  for  the  said  company,  lawfully  contract 
for  the  carrying  of  pass(;ng('rs,  ant!  providi;  that  passengers 
should  b(!  carried    by  the   said  ships  chartered  by  the  said 


CHAP.  XVI.]  CONSriRACY.  171 

company  from  London  to  Australia  as  aforesaid ;  and  the 
said  C.  J.  T.  and  H.  G.  M.,  by  means  of  the  said  false  pre- 
tences and  in  further  pursuance  of  the  said  last-mentioned 
conspiracy,  did  then  and  there  unlawfully  obtain  from  the 
said  J.  J.  eleven  pounds  in  money  of  the  moneys  of  the  said 
J.  J.,  and  from  the  said  J.  G.  nine  pounds  in  money  of  the 
moneys  of  the  said  J.  G.,  and  from  the  said  T.  B.  thirty 
pounds  in  money  of  the  moneys  of  the  said  T.  B.,  with  intent 
then  and  there  to  cheat  and  defraud  the  said  J.  J.,  J.  G.,  and 
T.  B.  of  their  said  moneys  respectively ;  to  the  great  dam- 
age of  the  said  J.  J.,  J.  G.,  and  T.  B.  respectively,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against 
the  peace,  etc. 

Third  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C.  J.  T.  and  H.  G. 
M.,  on  the  day  and  year  aforesaid,  in  the  city  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  together  with  divers 
other  evil-disposed  persons  to  the  jurors  aforesaid  unknown, 
unlawfully,  fraudulently,  and  deceitfully  did  combine,  conspire, 
confederate,  and  agree  together,  by  divers  false  pretences  and 
subtle  means  and  devices,  to  cause  it  to  be  believed  that  a 
certain  company,  called  the  "  Australian  Gold  Mining  and 
Emigration  Company,"  had  an  office  in  the  said  city  of  Lon- 
don for  the  transaction  of  its  business,  and  that  the  said  C.  J. 
T.  was  the  agent  of  and  for  the  said  company  ;  and  that  the 
said  company  had  then  chartered  a  certain  ship,  called  the 
"  Medicis,"  to  sail  from  London  to  a  place  beyond  the  seas, 
to  wit,  Australia,  and  that  the  said  C.  J.  T.  then  could,  as 
such  agent  of  and  for  the  said  company,  contract  for  the  carry- 
ing of  passengers  and  provide  that  passengers  should  be  car- 
ried by  the  said  ship,  called  the  "  Medicis,"  from  London  to 
Australia  aforesaid,  and  by  means  of  the  said  belief  to  obtain 
from  one  J,  G.  a  large  sum  of  money,  to  wit,  nine  pounds  in 
money  of  the  moneys  of  the  said  J.  G.,  and  to  cheat  and  de- 
fraud him  thereof ;  and  in  pursuance  of  the  said  last-mentioned 
conspiracy,  the  said  C.  J.  T.  and  H.  G.  M.,  on  the  day  and 
year  aforesaid,  at  the  city  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  court,  did  open  an  office  in  the  said  city  of 


172  CONSPIRACY.  [chap.  XVI. 

London,  and  did  falsely  pretend  that  it  was  the  office  of  the 
said  "  Australian  Gold  Mining  and  Emigration  Company," 
and  that  the  said  company  had  then  chartered  the  said  ship, 
called  the  "  Medicis,"  to  sail  from  London  to  a  place  beyond 
the  seas,  to  wit,  Australia,  and  that  the  said  C.  J.  T.  then 
could  contract  for  the  carrying  of  passengers,  and  provide  that 
passengers  should  be  carried  by  the  said  ship,  called  the  "  Med- 
icis," from  London  to  Australia  aforesaid  ;  by  means  of  which 
said  false  pretences  and  in  further  pursuance  of  the  said  last- 
mentioned  conspiracy,  the  said  C.  J.  T.  and  the  said  H.  G.  M., 
did  then  and  there  unlawfully  obtain  from  the  said  J.  G. 
nine  pounds  in  money  of  the  moneys  of  the  said  J.  G.,  with 
intent  then  and  there  to  cheat  and  defraud  him  thereof;  to 
the  great  damage  of  the  said  J.  G.,  to  the  evil  example  of  all 
others  in  the  like  case  offending,  and  against  the  peace,  etc. 

Fourth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C.  J.  T.  and  the 
said  H.  G.  M.  afterwards,  to  wit,  on  the  day  and  year  afore-, 
said,  in  the  city  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  together  with  divers  other  evil-disposed  persons  to 
the  jurors  aforesaid  unknown,  unlawfully,  fraudulently,  and 
deceitfully  did  combine,  conspire,  confederate,  and  agree  to- 
gether, by  divers  false  pretences  and  subtle  means  and  devices, 
to  cheat  and  defraud  one  J.  G.  of  a  large  sum  of  money  of 
the  moneys  of  the  said  J.  G.,  and  that,  in  pursuance  of  the 
said  last-mentioned  conspiracy,  the  said  C.  J.  T.  and  H. 
G.  M.,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  in 
the  city  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  did  falsely  pretend  that  a  certain  company,  called  the 
"  Australian  Gold  Mining  and  Emigration  Company,"  had 
then  chartered  a  certain  ship,  called  the  "  Medicis,"  to  sail 
from  London  to  a  certain  place  beyond  the  seas,  to  wit,  Port 
Philip  in  Australia,  and  that  the  said  C.  J.  T.  and  H.  G.  M.  then 
could,  on  behalf  of  the  said  company,  provide  that  one  H.  H. 
should  b(t  carrit'd  as  a  passenger  on  board  the  said  shij)  from 
London  1()  Port  I'hilip  Mforcsaid  ;  by  means  of  which  said  false 
priitences  and  in  pursuance  of  llie  said  last-mention(>d  conspir- 
acy, the  said  C.  J.  T.  and  li.  G.  JM.,  did  then  and  there  unlaw- 


CHAP.  XVI.]  CONSPIRACY.  173 

fully  obtain  from  the  said  J.  G.  nine  pounds  in  money  of  the 
moneys  of  the  said  J.  G.,  with  intent  then  and  there  to  cheat 
and  defraud  him  thereof.  Whereas  in  truth  and  in  fact  the 
said  company  had  not  then  chartered  the  said  ship,  called 
the  "  Medicis,"  to  sail  from  London  to  Port  Philip  aforesaid, 
nor  could  the  said  C.  J.  T.  and  H.  G.  M.,  or  either  of  them, 
then  on  behalf  of  the  said  company  or  in  any  other  right, 
provide  that  the  said  H.  H.  should  be  carried  as  a  passenger 
on  board  the  said  ship  from  London  to  Port  Philip  as  afore- 
said ;  to  the  great  damage  of  the  said  J.  G.,  to  the  evil  example 
of  all  others  in  like  case  offending,  and  against  the  peace,  etc. 
Fifth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  the  said  C.  J.  T.  and  H.  G. 
M.,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  in  the 
city  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
together  with  divers  other  evil-disposed  persons,  to  the  jvirors 
aforesaid  unknown,  unlawfully,  fraudulently,  and  deceitfully 
did  combine,  conspire,  confederate,  and  agree  together,  by 
divers  false  pretences  and  subtle  means  and  devices,  to  cheat 
and  defraud  one  J.  G.  of  a  large  sum  of  money,  of  the  moneys 
of  the  said  J.  G.,  and  that,  in  pursuance  of  the  said  last-men- 
tioned conspiracy,  the  said  C.  J.  T.  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  in  the  city  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  did  falsely  pretend  to  the  said 
J.  G.  that  a  certain  company,  called  the  "  Australian  Gold 
Mining  and  Emigration  Company,"  had  then  chartered  a 
certain  ship,  called  the  "  Medicis,"  to  sail  from  London  to  a 
certain  place  beyond  the  seas,  to  wit,  Port  Philip,  in  Australia, 
and  that  the  said  C.  J.  T.  then  could,  on  behalf  of  the  said 
company,  lawfully  contract  and  agree  that  one  H.  H.  should 
be  carried  as  a  passenger  on  board  the  said  ship  from  London 
to  Port  Philip  aforesaid ;  by  means  of  which  said  false 
pretences,  and  in  pursuance  of  the  said  last-mentioned  con- 
spiracy, the  said  C.  J.  T.  and  H.  G.  M.  did  then  and  there 
unlawfully  obtain  from  the  said  J.  G.  nine  pounds  in  money, 
of  the  moneys  of  the  said  J.  G.,  with  intent  then  and  there 
to  cheat  and  defraud  him  thereof.  Whereas  in  truth  and  in 
fact  no  company  called  the  "  Australian  Gold  and  General 

15* 


174  CONSPIRACY.  [chap.  XVI. 

IMining  Company  "  had  then  chartered  the  said  ship,  called  the 
"  Medicis,"  to  sail  from  London  to  Port  Philip  aforesaid,  nor 
could  the  said  C.  J.  T.  then,  on  behalf  of  the  said  company, 
or  in  any  other  right,  contract  or  agree  that  the  said  H.  H. 
should  be  carried  as  a  passenger  on  board  the  said  ship,  from 
London  to  Port  Philip  aforesaid ;  to  the  great  damage  of  the 
said  J.  G.,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace,  etc. 

Sixth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  the  said  C.  J.  T.  and  H.  G. 
M.,  afterwards,  to  wit,  on  the  same  day  and  year  aforesaid, 
in  the  city  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  together  with  the  said  divers  other  evil-disposed  persons, 
to  the  jurors  aforesaid  unknown,  unlawfully,  fraudulently,  and 
deceitfully  did  conspire,  combine,  confederate,  and  agree  to- 
gether, by  divers  false  pretences  and  subtle  means  and  devices, 
to  obtain  of  and  from  one  J.  J.  divers  large  sums  of  money,  of 
the  moneys  of  the  said  J.  J.,  and  then  and  there  to  cheat  and 
defraud  him  thereof;  to  the  great  damage  of  the  said  J.  J.,  to 
the  evil  example  of  all  others  in  like  case  offending,  and 
against  the  peace,  etc. 

10.  For  a  conspiracy^  by  false  representation^  to  induce  a  party 
to  forego  a  claim?- 

The  jurors,  etc.,  upon  their  oath  present,  that  before  the 
time  of  the  committing  of  the  offence  hereinafter  mentioned, 
to  wit,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  at  B.  aforesaid,  in  the  county  aforesaid,  one  T.  S.  sold 

to  W.  B.  a  certain  mare,  at  and  for  the  price,  to  wit,  of  one 
hnndrcd  dollars,  to  be  paid  for  the  said  mare  by  the  said 
W.  I>.  1o  the  said  T.  S.,  which  said  price  at  the  time  of  the 
coiiiiiiiiting  the  offence  hereinafter  mentioned  was  still  due 
and  uiii);ii<l.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, di)   further   present,  that  the   said  W.  C.  late  of,  etc., 

'  Tills  count  was  held  good  in  llegina  f.  Carlisle,  25  Eng.  Law  and  Eq. 
Hep.  577;  G  Cox,  C.  C.  yGG. 


CHAP.  XVI.]  CONSPIRACY.  175 

and  the  said  W.  B.,  late  of,  etc.,  then  and  there  well  knowing 
all  and  several  the  premises,  but  contriving  and  intending  to 
cheat  and  defraud  the  said  T.  S.,  did,  on  the  day  and  year 
aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  unlawfully 
conspire,  contrive,  confederate,  and  agree  together  by  false 
and  fraudulent  representations  to  the  said  T.  S.  that  the  said 
mare  was  unsound  of  her  wind,  and  that  she  had  been  exam- 
ined by  a  veterinary  surgeon,  who  had  pronounced  her  a 
roarer ;  and  that  the  said  W.  B.  had  sold  her  for  seventy-five 
dollars,  to  induce  and  persuade  the  said  T.  S.  to  accept  and 
receive  from  the  said  W.  B.  a  much  less  sum  of  money  in 
payment  for  the  said  mare  than  the  said  W.  B.  had  agreed  to 
pay  the  said  T.  S.  for  the  same,  and  thereby  then  and  there 
to  cheat  and  defraud  the  said  T.  S.  of  a  large  sum,  to  wit, 
twenty -five  dollars,  of  the  price  so  agreed  by  the  said  W.  B. 
to  be  paid  to  the  said  T.  S.  for  the  said  mare ;  against  the 
peace,  etc. 


CHAPTER    XVII 

DISTURBANCES   OF  PUBLIC   MEETINGS,   ETC. 

1.  For  disturbing'  a  school.  —  Mass.  St.  1849,  ch.  59  ;    St. 
1852,  ch.  222.1 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of  our  Lord ,  a  certain  school 

was  met  and  assembled  for  the  purpose  of  public  instruction, 
in  a  school-house,  known  as  the  school-house  in  ward  number 
seven,  at  B.  in  the  county  of  S.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  C.  D.  late  of 
B.  aforesaid,  in  the  county  aforesaid,  laborer,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  whilst  the  said  school  was  so  assembled  as 


^  In  the  case  of  Common-wealth  v.  Porter,  not  yet  reported,  but  an  abstract 
of  wliich  is  given  In  the  Monthly  Law  Reporter,  vol.  7,  n.  s.  p.  476,  the  de- 
fendant was  convicted  under  this  statute  for  disturbing  a  temperance  meet- 
ing. There  was  a  motion  to  quash  the  indictment,  and  also  a  motion  in 
arrest  of  judgment,  on  the  ground  that  the  indictment  charged  no  offence. 
It  was  contended  by  the  defendants,  tliat  the  language  of  the  statute  is  appli- 
cable only  to  meetings  which  are  recognized  by  our  laws,  as  schools  are,  that 
is,  meetings  wliicli  are  made  necessary  by  the  law  for  the  exercise  of  the 
legal  rights  and  duties  of  citizens.  But  Shaw,  C.  J.,  in  delivering  the  opin- 
ion of  the  Court,  held,  that  in  this  Commonwealth  the  right  of  the  people  to 
assemble  and  consult  upon  the  common  good  is  guaranteed  by  the  Constitu- 
tion ;  that  a  lawful  purpose  is  a  purpose  warranted  by  the  Constitution  and 
laws ;  and  the  j)cf)pl(;  have  a  right  to  meet  and  discuss  the  temperance  laws ; 
and  are  protected  in  so  doing.  And  it  is  no  objection  that  this  statute  may 
extend  to  political  meetings,  and  even  to  amusements.  Even  theatres  are 
lawful  assemblies.  And  if  it  were  held  otherwise,  clubs  might  be  formed  to 
put  an  entire  end  to  all  such  meetings. 


CHAP.  XVII.]      DISTURBANCES   OF   PUBLIC   MEETINGS.  177 

aforesaid,  within  the  said  school-house,  and  during  the  per- 
formance of  the  exercises  of  said  school,  did  come  into  the 
said  school-house,  and  did  then  and  there  wilfully  interrupt 
and  disturb  the  said  school  by  then  and  there,  here  set  forth 
the  facts  according-  to  the  evidence ;  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


2.  For  disturbing  a  funeral  procession  by  fast  driving.  — 

Mass.  St.  1845,  ch.  193. 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 

to  wit,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  in  the  county  of  S.,  a  certain  funeral  procession  was 
assembled  to  solemnize  the  burial  of  one  J.  N.  then  lately 
deceased,  and  was  then  and  there  being  and  passing  along 
and  through  a  certain  street  called  Main  Street.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  C.  D.  late  of  B.  aforesaid,  in  the  county  aforesaid,  laborer, 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  with  force 
and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  then  and 
there  having  charge  of  a  certain  horse  and  carriage,  did  then 
and  there  fast  and  furiously  drive  the  same  along  and  through 
said  Main  Street,  and  by  reason  of  such  fast  and  furious 
driving  of  the  same,  did  then  and  there  unlawfully  and  wil- 
fully interrupt  and  disturb  the  said  funeral  procession  then 
and  there  being  and  passing  along  and  through  said  Main 
Street;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 

3.  For  disturbing  religious  ivorship.  —  Rev.  Sts.  of  Mass.  ch. 

130,  §  171.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 

1  A  charge  for  behaving  rudely  in  a  meeting-house,  and  for  interrupting 
public  -worship,  cannot  be  joined  in  one  count.  Commonwealth  v.  Symonds, 
2  Mass.  (Rand's  ed.),  162. 


178  DISTURBANCES    OF   PUBLIC   MEETINGS.      [CHAP.  XVII. 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  did  wilfully  interrupt  and  disturb  a  cer- 
tain assembly  of  people  there  met  for  the  worship  of  God, 
within  the  place  of  such  meeting,  to  wit,  within  the  meeting- 
house of  the  First  Parish  in  B.  aforesaid,  in  the  county  afore- 
said, and  during  the  performance  of  divine  service  in  said 
meeting-house,  by  then  and  there,  here  set  out  the  facts 
according'  to  the  evidence;  against  the  peace,  etc.,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and 
provided. 

4.  For  disorderly  conduct  at  an  election?- 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 
to  wit,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  at   B.   in   the  county  of  S.,   a  town  meeting  of  the 

inhabitants  of  said  B.,  for  the  election  of  governor  and  lieu- 
tenant-governor of  said  Commonwealth,  and  for  senators  for 
the  district  of  S.,  was  then  and  there  duly  holden.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  afterwards,  on 
the  day  and  year  aforesaid,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  in  the  town  meeting  aforesaid, 
did  behave  himself  disorderly,  by  then  and  there,  here  set  out 
the  facts  according  to  the  evidence ;  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

'  This  is  an  offence  at  common  law.    Commonwealth  v.  Iloxey,  16  Mags. 
(Rand's  ed.),  384.     See  Mass.  llev.  Sts,  cb.  4,  §  10. 


CHAPTER    XYIII. 

DUELLING   AND    CHALLENGING   TO   FIGHT. 

As  deliberate  duelling  is,  if  death  ensue,  murder,  and  is 
also  an  offence,  though  the  deed  should  not  prove  fatal  to 
either  party,  so  the  sending  a  challenge  to  fight  is  a  misde- 
meanor, by  reason  of  its  direct  and  immediate  tendency  to  a 
breach  of  the  peace,  and  as  leading  to  the  crime  of  murder. 
And  it  is  not  only  an  offence  to  challenge  another,  either  by 
word  or  letter,  to  fight  a  duel,  but  also  to  be  the  messenger  of 
such  a  challenge.  And  to  provoke  another  to  send  a  chal- 
lenge has  been  likewise  held  to  be  a  misdemeanor.^ 

1.  For  murder  in  a  duel  fought  ivithout  the  State.  —  Rev.  Sts. 
of  Mass.  ch.  125,  §  3. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  being 
an  inhabitant  of  this  State,  to  wit,  of  B.  in  the  county  of  S.  and 
Commonwealth  aforesaid,  gentleman,  by  a  previous  appoint- 
ment and  engagement  made  within  this  State,  to  wit,  at  B. 
in  the  county  of  S.  and  Commonwealth  aforesaid,  on  the  first 
day  of  May  in  the  year  aforesaid,  with  one  C.  D.  to  fight  a 


^  1  Gabbctt,  Grim.  Law,  66 ;  1  Hawkins,  P.  C.  §  18,  19 ;  1  Deacon,  Grim. 
Law,  219;  Boothby,  Grim.  Law,  (ed.  1854,)  60.  See  Rex  v.  Rice,  3 
East,  581  ;  Rex  v.  Phillips,  6  East,  464 ;  The  State  v.  Taylor,  1  Gonstitu- 
tional  Reps.  107;  Regina  v.  Guddy,  1  Carrlngton  &  Kirwan,  210;  Regina 
V.  Young,  8  Carrington  &  Payne,  644 ;  Rex  v.  Murphy,  6  Garrington  & 
Payne,  103.  See  also  Hon.  Lorenzo  Sabine's  work,  entitled  Notes  on 
Duels  and  Duelling,  p.  42,  43,  and  Appendix,  p.  337. 


180  DUELLING   AND   CHALLENQING.  [CHAP.  XVin. 

duel  without  the  jurisdiction  of  this  State,  to  wit,  at  T.  in 
the  county  of  S.  and  State  of  M.,  did,  afterwards,  to  wit,  on 
the  first  day  of  June  in  the  year  aforesaid,  at  T.  in  the  county 
of  S.  and  State  of  M.,  fight  a  duel  with  the  said  C.  D.,  and 
on  the  first  day  of  June  in  the  year  aforesaid,  with  force  and 
arms,  at  T.  aforesaid,  in  the  county  aforesaid,  in  the  State  of 
INL,  in  and  upon  the  said  C.  D.,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  make  an  assault;  and  that  the  said 
A.  B.  a  certain  pistol,  then  and  there  charged  with  gunpow- 
der and  one  leaden  bullet,  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  discharge  and  shoot  off,  to, 
against,  and  upon  the  said  C.  D. ;  and  that  the  said  A.  B., 
with  the  leaden  bullet  aforesaid,  out  of  the  pistol  aforesaid, 
then  and  there,  by  force  of  the  gunpowder  aforesaid,  by  the 
said  A.  B.  discharged  and  shot  out  of  the  said  pistol  as  afore- 
said, then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  penetrate,  and  wound  the  said  C.  D., 
then  and  there  giving  to  the  said  C.  D.,  with  the  leaden  bullet 
aforesaid,  so  as  aforesaid  discharged  and  shot  ovit  of  the 
pistol  aforesaid,  by  the  said  A.  B.,  in  and  upon  the  right  side 
of  the  belly  of  the  said  C.  D.,  one  mortal  wound,  of  the  depth 
of  four  inches,  and  of  the  breadth  of  one  inch  ;  of  which  mor- 
tal wound,  the  said  C.  D.  on  and  from  the  said  first  day 
of  June  in  the  year  aforesaid,  until  the  first  day  of  July  in  the 
year  aforesaid,  within  this  State,  to  wit,  at  B.  in  the  county 
of  S.  and  Commonwealth  aforesaid,  did  sufler  and  languish, 
and  languishing  did  live ;  and  afterwards,  to  wit,  on  the  first 
day  of  July  in  the  year  aforesaid,  at  B.  in  the  county  of  S. 
and  Commonwealth  aforesaid,  of  the  mortal  wound  aforesaid, 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  A.  B.,  him  the  said  C.  D.  then  and  there, 
by  the  m:inn(.'r  and  means  aforesaid,  feloniously,  wilfnlly,  and 
of  his  malice  aforeUiought,  did  kill  and  murder;  against  the 
peace,  etc.,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  ;ui<l  provided. 


CHAP.  XVIII.]  DUELLING  AND   CHALLENGING.  181 


2.  For  sending'  a  ivritlen  message  to  a  person,  to  fight  a  duel. 

Rev.  Sts.  of  Mass.  ch.  125,  §  6.i 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of  B. 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  wilfully  and  maliciously  did  send  a  cer- 
tain written  message  to  one  E.  F.,  purporting  and  intended 
to  be  a  challenge  to  the  said  E.  F.,  to  fight  a  duel  with  the 
said  C.  D.,  with  a  deadly  weapon,  to  wit,  a  pistol,  which  writ- 
ten message  is  of  the  tenor  following,^  that  is  to  say ;  here  set 
out  a  copy  of  the  message;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

3.  For  posting  another  for  not  fighting  a  duel. —  Rev.  Sts.  of 

Mass.  ch.  125,  §  8. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  W.,  in  the  county  of  W.,  wickedly, 
wilfully,  and  maliciously  did  challenge  one  C.  D.  to  fight  a 
duel  with  the  said  A.  B.,  with  deadly  weapons,  to  wit, 
with  pistols ;  and  that  the  said  C.  D.  having  then  and  there 
refused  to  fight  the  duel  aforesaid  with  the  said  A.  B.,  in 
pursuance  of  the  challenge  aforesaid,  the  said  A.  B.  after- 
wards, to  wit,  on  the  same  day  and  year  aforesaid,  at  W. 
in  the  county  aforesaid,  did  wickedly  and  maliciously  post 
and  expose  the  said  C.  D.  to  public  reproach,  by  then  and 


^  In  an  indictment  upon  a  statute  which  enacts  that  "  Every  person  who 
shall  give,  accept,  or  knowingly  carry  a  challege,  in  writing,  or  otherwise,  to 
fight  in  single  combat,  with  any  deadly  weapon,"  etc.,  it  is  not  necessary  to 
aver  the  place  where  the  contemplated  duel  is  to  be  fought.  Ivey  v.  The 
State,  12  Alabama,  276. 

*  See  Brown  r.  The  Commonwealth,  2  Virginia  Cases,  516  ;  Common- 
•wealth  V.  Pope,  3  Dana,  418. 

16 


182  DUELLING   AND    CHALLENGING.  [CHAP.  XVIIL 

there  placing  and  exposing  to  public  view,  to  wit,  on  the 
City  Hall  in  W.  aforesaid,  in  the  county  aforesaid,  a  certain 
writing,  with  the  name  of  the  said  A.  B.  thereunto  subscribed, 
containing  reproachful  and  contemptuous  language  to  and 
concerning  the  said  C.  D.,  which  writing  is  of  the  tenor  follow- 
ing, that  is  to  say ;  here  insert  a  copy ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


CHAPTER    XIX. 

ELECTIONS. 

1.  Against  a  person  for  voting;  knoicing  himself  not  to  be  a 

qualified  voter.  —  Rev.  Sts.  of  Mass.  ch.  4,  §  6. 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of  our  Lord ,  at  B.  in  the  county 

of  S.,  a  town  meeting  of  the  inhabitants  of  said  B.  in  the 
county  aforesaid,  for  the  election  of  governor  and  lieutenant- 
governor  of  the  Commonwealth  aforesaid,  and  senators  for 
the  district  of  S.,^  was  then  and  there  duly  holden.*  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  C.  D.  late  of  B.  in  the  county  of  S.,  laborer,  then 
and  there  well  knowing  himself  not  to  be  a  qualified  voter 
in  said  B.,  did  then  and  there,  at  the  said  election,  know- 
ingly and  wilfully  give  in  a  vote  for  the  officers  aforesaid, 
being  the  officers  then  and  there  to  be  chosen  at  the  elec- 
tion aforesaid ;  against  the  peace,  etc.,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

2.  Against  a  j^erson  for  giving  in  more  than  one  ballot  at  one 

time  of  balloting.  —  Rev.  Sts.  of  Mass.  ch.  4,  §  7.2 

Proceed  as  in  the  preceding  precedent,  to  the  asterisk,  and 
then  as  folloivs.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further   present,  that  C.  D.  late  of  B.  in  the 


^  It  is  not  necessary  to  allege  that  the  district  of  S.  is  in  the  Common- 
wealth.    Commonwealth  v.  Shaw,  7  Metcalf,  52. 

"^  This  is  a  misdemeanor  at  common  law.  Commonwealth  v.  Silsbee,  9 
Mass.  (Rand's  ed.),  416.     See  also  The  State  v.  Bailey,  21  Maine,  62. 


184  ELECTIONS.  [chap.  XIX. 

county  of  S.,  laborer,  did  then  and  there,  at  the  election  afore- 
said, wilfully,  fraudulently,  knowingly,  and  designedly,  give 
in  more  than  one  ballot  and  list  of  persons  then  and  there  to 
be  elected  and  chosen  into  the  said  offices,  at  one  time  of  bal- 
loting at  the  choice  and  election  aforesaid  ;  against  the  peace, 
etc.,  and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

# 

3.  Against  a  person  for  giving  false  answers  to  the  Selectmen 
presiding  at  an  election,  in  order  to  procure  his  name  to 
be  inserted  on  the  list  of  voters,  and  to  obtain  permission 
to  vote.  —  Rev.  Sts.  of  Mass.  ch.  4,  §  8. 

Proceed  as  in  precedent  number  one,  to  the  asterisk,  and  then 
as  folloios.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  C.  D.  late  of  B.  in  the  county  of 
S.,  laborer,  was  then  and  there  at  the  election  aforesaid,  in- 
quired of  by  the  selectmen  of  said  B.,  presiding  at  said  meet- 
ing and  election,  whether  said  C.  D.  had  paid  any  tax  assessed 
upon  liim  within  two  years  next  preceding  said  election, 
within  any  town  or  district  in  this  State,  to  wit,  the  Com- 
monwealth aforesaid,  and  that  the  said  C.  D.  did  then  and 
there  wilfully  give  a  false  answer  to  said  selectmen,  namely, 
that  the  said  C.  D.  had  paid  a  tax  assessed  upon  him  in 
the  city  of  L.  in  said  county,  within  two  years  next  preced- 
ing said  election,  to  wit,  a  tax  assessed  to  him  in  said  L.  in 

the  year  of  our  Lord ;  whereas,  in  truth  and  in  fact,  said 

C.  D.  had  not  paid  any  such  tax  so  assessed  upon  him  in 

said  L.  in  the  year  of  our  Lord ;  and  that  the  said  inquiry 

was  then  and  there  made  of  C.  D.  for  the  purpose  of  ascer- 
taining his  right  to  vote  at  said  election,  and  said  false 
answers  were  then  and  there  returned  by  said  C.  D.,  the  said 
C  D.  then  and  there  fraadulcnily  intending  to  procure  his 
name  to  be  iiiserlcd  on  the  voters'  list  of  said  town  of  B.^  in 

'  Where  the  evidence  was  that  the  defendant's  name  was  on  the  list  of 
voters,  when  he  gave  false  answers,  it  was  held,  that  this  allegation  could  not 
be  rejected  as  .surplu.sagc,  and  that  there  was  a  material  variance  between 
the  allegation  and  the  jjroof.     Commonwealth  v.  Shaw,  7  Metcalf,  52. 


CHAP.  XIX.]  ELECTIONS.  185 

the  county  aforesaid,  and  to  obtain  permission  then  and  there 
to  vote  at  said  election ;  against  the  peace,  etc.,  and  contrary, 
etc. 


4.  For  attempting  to  influence  a  voter  hy  threatening  to  dis- 
charge him  from  employment.  —  Mass.  St.  1852,  ch.  321. 

Proceed  as  in  precedent  number  one,  to  the  asterisk,  and 
then  as  foUoics.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  one  J.  N.,  the  said  J.  N. 
being  then  and  there  a  qualified  voter  in  this  Commonwealth, 
to  wit,  at  B.  aforesaid,  in  the  county  aforesaid,  \vas  then  and 
there  in  the  employment  of  one  C.  D.  late  of  B.  aforesaid,  in  the 
county  aforesaid,  gentleman.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  C.  D. 
did  then  and  there,  at  the  said  election,  unlawfully  attempt 
to  influence  the  said  J.  N.,  so  being  a  qualified  voter  in  this 
Commonwealth  as  aforesaid,  to  give  his  the  said  J.  N.'s  bal- 
lot in  said  election,  then  and  there  duly  holden,  by  then  and 
there  threatening  to  discharge  the  said  J.  N.  from  the  said 
C.  D's  employment ;  against  the  peace,  etc.,  and  contrary  to 
the  form  of  the  statute,  etc. 

16* 


CHAPTER    XX. 


EMBEZZLEMENT. 


An  indictment  for  embezzlement  must  contain,  in  addition 
to  all  the  requisites  of  an  indictment  for  larceny  at  common 
law,  allegations  setting  forth  the  fiduciary  relation,  or  the 
capacity  in  which  the  defendant  acted,  and  by  means  of 
which  the  property  came  into  his  possession,  and  also  charg- 
ing the  fraudulent  conversion.  But  the  two  offences  of  lar- 
ceny and  embezzlement  are  so  far  distinct  in  their  character, 
that  under  an  indictment  charging  merely  a  larceny,  evidence 
of  embezzlement  will  not  authorize  a  conviction.^ 


^  Commonwealth  v.  Simpson,  9  Metcalf,  138.  In  this  case,  Dewey,  J., 
said,  "  We  have  considered  the  general  question,  whether  an  indictment  for 
simple  larceny  is  an  appropriate  and  legal  form  for  charging  a  case  of  em- 
bezzlement under  the  Rev.  Sts.  ch.  12G,  §  30.  The  statute  in  terms  says, 
that  the  person  doing  certain  acts  '  shall  be  deemed,  by  so  doing,  to  have 
committed  the  crime  of  simple  larceny.'  Treating  this  statute  as  one  defining 
the  offence  of  larceny,  and,  under  the  legislative  authority,  embracing  within 
it  a  larger  range  of  offences,  to  be  hereafter  known  and  recognized  as  larcenies, 
it  would  well  authorize  all  offences  described  in  it  to  be  charged  as  larcenies, 
relying  upon  the  statute  as  an  authority  for  the  position,  that  the  cases  may 
be  punished  as  larcenies.  But  we  do  not  feel  authorized  to  give  so  broad  a 
construction  to  this  statute,  and  one  which  would  entirely  merge  the  crime 
of  embezzlement  in  that  of  larceny.  The  general  object  of  the  various  stat- 
utes in  relation  to  embezzlement,  in  England  and  in  this  Commonwealth, 
doubtless  was,  to  (imlirace,  as  criminal  offences  punishable  by  law,  certain 
cases  wlicrc,  althougli  the  moral  guilt  Avas  <piite  as  great  as  in  larceny,  yet 
the  technical  objciction,  arising  from  the  fact  of  a  possession  lawfully  acquired 
by  the  party,  screened  him  from  punislnncnt.  They  were  therefore  declared 
crimes  punishalile  by  law. 

"  Tlie  j)urp(;.scs  of  this  statute  may  be  sufficiently  attained,  without  any 


CHAP.  XX.]  EMBEZZLEMENT.  187 


1.  Against  the  president  and  cashier  of  a  hank  for  an  embezzle- 
ment.   Rev.  Sts.  of  Mass.  ch.  126,  §  27.i 

The  jurors,  etc.,  upon  their  oath  present,  that  William 
Wyman,  late  of  Charlestown,  in  the  county  of  jVIiddlesex, 
gentleman,  and  Thomas  Brown  the  younger  of  that  name,  of 

infringement  of  those  rules  of  criminal  pleading  which  require  the  charge  to 
be  particularly  and  certainly  set  forth.  The  defendant  should,  as  far  as  is 
reasonably  practicable,  be  apprised,  by  the  indictment,  of  the  precise  nature 
of  the  charge  made  against  him.  This,  in  embezzlement,  so  far  as  respects 
the  nature  of  the  offence  or  character  of  the  crime  charged,  may  be  easily 
indicated  by  setting  forth  the  fiduciary  relation,  or  the  capacity  in  Avhich  the 
defendant  acted,  and  by  means  of  which  the  property  came  into  his  posses- 
sion, and  by  charging  the  fraudulent  conversion.  Such  seems  to  have  been 
the  practice  under  the  English  Sts.,  21  Hen.  8,  ch.  7,  39  Geo.  3,  ch.  85,  and 
52  Geo.  3,  ch.  63.  See  the  forms  of  indictment,  in  3  Chitty,  Crim.  Law, 
(4th  Am.  ed.),  961,  et  seq.    Archbold  Crim.  PI.  (Isted.),  156. 

"  The  court  are  of  opinion  that  the  two  offences  of  larceny  and  embezzle- 
ment are  so  far  distinct  in  their  character,  that  under  an  indictment  charging 
merely  a  larceny,  evidence  of  embezzlement  is  not  sufficient  to  authorize  a 
conviction ;  and  that,  in  cases  of  embezzlement,  the  proper  mode  is,  notwith- 
standing the  statute  to  which  we  have  referred,  to  allege  sufficient  matter  in 
the  indictment  to  apprise  the  defendant  that  the  charge  is  for  embezzlement. 
Although  the  party,  in  the  language  of  the  statute,  '  shall  be  deemed  to  have 
committed  the  crime  of  simple  larceny,'  yet  it  is  a  larceny  of  a  peculiar  char- 
acter, and  must  be  set  forth  in  its  distinctive  character." 

^  Commonwealth  v.  Wyman,  8  Metcalf,  247.  The  indictment  in  this  case 
was  founded  on  the  Rev.  Sts.  of  Mass.  ch.  133,  §  10,  which  enact,  that  "In 
any  prosecution  for  the  offence  of  embezzling  the  money,  bank-notes,  checks, 
drafts,  bills  of  exchange,  or  other  securities  for  money,  of  any  person,  by  a 
clerk,  agent,  or  servant  of  such  person,  it  shall  be  sufficient  to  allege  gen- 
erally, in  the  indictment,  an  embezzlement  of  money  to  a  certain  amount, 
without  specifying  any  particulars  of  such  embezzlement,  and  on  the  trial, 
evidence  may  be  given  of  any  such  embezzlement,  committed  within  six 
months  next  after  the  time  stated  in  the  indictment;  and  it  shall  be  sufficient 
to  maintain  the  charge  in  the  indictment,  and  shall  not  be  deemed  a  vari- 
ance, if  it  shall  be  proved,  that  any  money,  bank-note,  check,  draft,  bill  of 
exchange,  or  other  security  for  money,  of  such  person,  of  whatever  amount, 
was  fraudulently  embezzled  by  such  clerk,  agent,  or  servant,  within  the  said 
period  of  six  months."  In  Commonwealth  v.  Wyman  it  was  held,  that  this 
section  did  not  include  bank  officers,  and  that  a  bank  officer,  when  accused 


188  EMBEZZLEMENT.  [CHAP.  XX. 

the  same  place,  gentleman,  at  Charlestown  aforesaid,  in  the 
county  aforesaid,  on  the  first  day  of  April  in  the  year  of  our 

Lord ,  the  said  Wyman,  then  and  there  being  one  of  the 

directors  and  president  of  the  Phoenix  Bank,  a  corporation 
then  and  there  duly  and  legally  established,  organized,  and 
existing  under  and  by  virtue  of  the  laws  of  the  said  Common- 
wealth, as  an  incorporated  bank,  and  the  said  Brown  being 
then  and  there  cashier  of  the  said  bank,  did,  by  virtue  of  their 
said  respective  offices  and  employments,  and  whilst  the  said 
Wyman  and  Brown  were  severally  employed  in  their  said 
respective  offices,  have,  receive,  and  take  into  their  possession 
certain  money  to  a  large  amount,  to  wit,  to  the  amount  and 
sum  of  two  hundred  and  twenty  thousand  dollars,  and  of  the 
value  of  two  hundred  and  twenty  thousand  dollars,  divers 
bills,  called  bank-bills,  amounting  in  the  whole  to  the  sum  of 
one  hundred  and  twenty  thousand  dollars,  and  of  the  value  of 
one  hundred  and  twenty  thousand  dollars,^  divers  notes,  called 
treasury  notes,  amounting  in  the  whole  to  the  sum  of  seventy- 
five  thousand  dollars,  and  of  the  value  of  seventy-five  thou- 
sand dollars,  of  the  goods  and  chattels,  property  and  moneys 
of  the  said  President,  Directors,  and  Company  of  the  Phoenix 
Bank,2  in  their  banking-house  there  situate,  being;  and  the 
said  money,  bills,  and  notes  then  and  there  unlawfully,  fraud- 
ulently, and  feloniously  did  embezzle,  in  the  banking-house 


of  embozzlement,  must  be  charged  with  a  specific  act  of  fraud,  as  in  larceny 
at  coninion  law,  and  be  proved  guilty  of  the  specific  ofTence  charged,  and 
that  not  more  than  one  offence  could  be  alleged  in  one  count  of  the  indict- 
ment. IJut  by  St.  1845,  ch.  215,  the  provisions  of  this  section  are  extended 
to  all  prosecutions  of  a  similar  nature,  against  presidents,  directors,  cashiers, 
or  other  officers  of  banks. 

'  The  descriptions  of  bank-bills,  by  amounts,  value,  by  what  bank  issued, 
and  by  whom  signed  and  countersigned,  are  sufficient  without  specifying  the 
numbers  of  the  bills,  and  the  duty  thereof.  Bulloch  i'.  The  State,  10 
Georgia,  4  7. 

*  The  ownership  may  be  laid  in  the  person  liaving  the  actual  or  construc- 
tive possession,  or  the  general  or  special  property  in  the  whole,  or  in  any 
part  of  the  ))rop(Tty.  Rev.  Sts.  of  Mass.  ch.  133,  §  11 ;  Commonwealth  t'. 
Harney,  10  Metcalf,  42G. 


CHAP.  XX.]  EMBEZZLEMENT.  189 

aforesaid.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  Wyman  and  Brown  then  and 
there,  in  manner  and  form  aforesaid,  the  aforesaid  money, 
bills,  and  notes,  of  the  goods,  chattels,  property,  and  moneys 
of  the  said  President,  Directors,  and  Company  of  the  Phoenix 
Bank,  feloniously  did  steal,  take,  and  carry  away,  in  the  bank- 
ing-house aforesaid  ;  against  the  peace  of  the  Commonwealth 
aforesaid,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

2.  Against  a  clerk  for  embezzlement.  —  Rev.  Sts.  of  Mass.  ch. 

126,  §  29.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  trader,  on  the  first  day  of  June  in  the 

^  In  Massachusetts,  it  has  been  held,  that  there  are  a  certain  class  of  cases 
■which  do  not  come  within  the  statute.  Thus,  in  Commonwealth  v.  Lib- 
bey,  11  Metcalf,  64,  that  a  person  who  is  employed  to  collect  bills  for  the 
proprietors  of  a  newspaper  establishment,  and  converts  to  his  own  use  the 
money  which  he  collects  for  them,  is  not  such  an  agent  or  servant  as  is 
intended  by  section  twenty-nine.  In  this  case,  Dewey,  J.,  said,  "In  the 
case  of  a  domestic  servant,  and  to  some  extent,  in  the  case  of  a  special 
agency,  the  right  of  property  and  the  possession  continue  in  the  princi- 
pal, and  a  disposal  of  the  property  would  be  a  violation  of  the  trust,  and  an 
act  of  embezzlement.  But  cases  of  commission-merchants,  auctioneers,  and 
attorneys  authorized  to  collect  demands,  stand  upon  a  different  footing;  and 
a  failure  to  pay  over  the  balance  due  to  their  employers,  upon  their  collec- 
tions, will  not,  under  the  ordinary  circumstances  attending  such  agency,  sub- 
ject them  to  the  heavy  penalties  consequent  upon  a  conviction  of  the  crime 
of  embezzlement."  And  in  Commonwealth  v.  Stearns,  2  Metcalf,  343,  it 
was  held,  that  an  auctioneer,  who  receives  money  on  the  sale  of  his  em- 
ployer's goods,  and  does  not  pay  It  over,  but  misapplies  It,  is  not  such  an 
agent  or  servant  as  is  intended  by  the  statute ;  whether  he  receives  the  goods 
for  sale  in  the  usual  mode,  or  receives  them  on  an  agi'eement  to  pay  a  certain 
sum  therefor,  within  a  specified  time  after  the  sale.  See  The  People  v. 
Allen,  5  Denio,  76.  By  "  the  money  or  property  of  another,"  in  the  statute, 
is  meant  the  money  or  property  of  any  person  except  such  agent,  clerk,  or 
servant,  who  embezzles  it.  A  different  construction  would  leave  unprovided 
for,  all  cases  of  embezzlement  by  servants  or  agents,  of  the  property  of  their 
masters  or  their  principals.  Commonwealth  v.  Stearns,  ubi  supra.  See  also 
The  People  v.  Hennessey,  11  Wendell,  147. 


190  EMBEZZLEMENT.  [CHAP.  XX. 

year  of  our  Lord ,  at  B.  in  the  county  of  S.,  being  then 

and  there  the  clerk  ^  of  one  J.  N.,  the  said  C.  D.  not  being 
then  and  there  an  apprentice  to  the  said  J.  N.,  nor  a  person 
under  the  age  of  sixteen  years,  did  then  and  there,  by  virtue 
of  his  said  employment,  have,  receive,  and  take  into  his  pos- 
session certain  money,^  to  a  large  amount,  to  wit,  to  the 
^aiTiount  of  one  thousand  dollars,  and  of  the  value  of  one  thou- 
sand dollars,  of  the  property  and  moneys  of  the  said  J.  N.,^  the 
said  C.  D.'s  said  employer,  and  the  said  C.  D.  the  said  money 
then  and  there  feloniously^  did  embezzle,^  and  fraudulently 

1  An  indictment  under  2  Rev.  Sts.  of  New  York,  678,  §  59,  must  aver  that 
tlie  defendant  was  a  "  clerk,"  or  a  "  servant "  of  some  person,  or  an  officer,  or 
agent  of  a  corporation,  and  that  the  property  he  is  charged  with  embezzling 
came  to  his  possession,  or  under  his  care,  by  virtue  of  such  employment.  An 
allegation  that  the  defendant  received  the  property  as  the  "  agent "  of  a  per- 
son is  insufficient.  The  Peojjle  v.  Allen,  5  Denio,  76.  A  servant  of  partners 
may  be  described  as  the  servant  of  any  of  the  partners.  Leech's  case,  3 
Starkie,  N.  P.  Rep.  70. 

"  It  is  not  necessary  to  allege  from  whom  the  money,  etc.,  was  received. 
Rex  V.  Beacall,  1  Carrington  &  Payne,  454.  But  the  Court  will  order  the 
prosecutor  to  furnish  the  defendant  with  a  particular  of  the  charges,  if  he 
make  an  affidavit  that  he  does  not  know  what  the  charges  are,  and  that  he 
has  applied  to  the  prosecutor  for  a  particular,  and  it  has  been  refused.  Rex 
V.  Bootyman,  5  Carrington  &  Payne,  300.  And  such  particular  ought,  at 
least,  to  state  the  names  of  the  persons  from  whom  the  money  is  alleged  to 
have  been  received.  Rex  v.  Hodgson,  3  Carrington  &  Payne,  422.  It  seems, 
that  the  question  whether  a  bill  of  particulars  or  specification  of  facts  shall 
be  required,  is  in  all  cases,  civil  and  criminal,  exclusively  within  the  discre- 
tion of  the  presiding  judge.  Commonwealth  v.  Giles,  1  Gray,  466.  See 
ante,  p.  56. 

^  The  indictment  must  allege  the  owner  of  the  property  embezzled.  It  is 
not  sufficient  to  allege  that  the  defendant  took  it  into  his  possession  by  virtue 
of  his  employment,  or  on  a:ccount  of  his  master.  Rex  v.  McGregor,  Russell 
&  Ryan,  C.  C.  23 ;  2  Leach,  C.  C.  (4th  London  ed.),  932 ;  2  East,  P.  C.  23 ; 
3  liosantiMct  &  I'uller,  106. 

*  It  is  usual  and  ])rudent  to  allege  that  the  defendant  feloniously  did  em- 
bezzle, etc. ;  but  it  is  not  absolutely  necessary,  if  the  conclusion  charge  that 
he  feloniously  stole.     Re.x.  v.  Crighton,  Russell  &  Ryan,  C.  C.  62. 

*  An  allegation  that  the  defendant  did  "  embezzle,  steal,  take,  and  carry 
away"  certain  goods,  is  not  bad  for  duplicity.  The  word  "embezzle"  may 
be  rejected  as  surplnsnge,  and  the  iudictnicnt  he  regarded  as  charging  a  lar- 
ceny only.     CouMuoinvealtli  r.  Siiiipi^on,  9  Metcalf,  138. 


CHAP.  XX.]  EMBEZZLEMENT.  191 

convert  to  his  own  use,  without  the  consent  of  the  said  J.  N., 
the  said  C.  D.'s  employer ;  whereby,  and  by  force  of  the  statute 
in  such  case  made  and  provided,  the  said  C.  D.  is  deemed  to 
have  committed  the  crime  of  simple  larceny.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.  then  and  there,  in  manner  and  form  aforesaid,  the 
said  money,  of  the  property  and  moneys  of  the  said  J.  N.,  the 
said  C.  D.'s  said  employer,  from  the  said  J.  N.  feloniously  did 
steal,  take,  and  carry  away ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

3.  Against  a  carrier  for  embezzlement.  —  Rev.  Sts.  of  Mass. 
ch.  126,  §  30.1 

The  jurors,  etc.,  upon  their  oath  present,  that  one  J.  N.  on 

the  first  day  of  June  in  the  year  of  our  Lord ,  at  F.  in  the 

county  of  M.,  did  deliver  to  one  J.  S.  late  of,  etc.,  the  said 
J.  S.  being  then  and  there  a  carrier,  a  certain  large  sum  of 
money,  to  wit,  the  sum  of  one  thousand  dollars,  and  of  the 
value  of  one  thousand  dollars,  of  the  property  and  moneys  of 
the  said  J.  N.,  to  be  carried  by  the  said  J.  S.,  for  hire,  to  wit, 
for  the  sum  of  two  dollars,  and  to  be  delivered  by  the  said 
J.  S.,  for  the  said  J.  N.,  and  by  the  said  J.  N.  sent  and  directed 
to  one  C.  D.  at  B.  in  the  county  of  S. ;  and  that  the  said  J.  S. 
did,  by  virtue  of  his  said  employment  as  a  carrier,  at  F.  afore- 
said, in  the  county  aforesaid,  and  while  he  was  so  employed 
as  aforesaid,  take  into  his  possession  said  money  to  be  carried 
and  delivered  as  aforesaid,  and  that  the  said  J.  S.,  carrier  as 

•  Carriers  for  hire  could  not,  by  the  common  law,  commit  larceny. 
Commonwealth  v.  Brown,  4  Mass.  (Rand's  ed.),  579.  But  this  rule  has  been 
changed  in  Massachusetts,  and  in  Maine.  Rev.  Sts.  of  Mass.  ch.  126,  §  30; 
Rev.  Sts.  of  Maine,  ch.  156,  §  7.  Under  the  statute  of  Maine,  if  a  person, 
to  whom  property  is  intrusted  in  Maine,  to  be  carried  for  hire,  and  delivered 
in  another  State,  shall,  before  such  delivery,  fraudulently  convert  the  same 
to  his  own  use,  the  crime  is  punishable  in  Maine,  whether  the  act  of  conver- 
sion be  in  that  State  or  in  another.     The  State  v.  Haskell,  33  Maine,  127. 


192  EMBEZZLEMENT.  [CHAP.  XX. 

aforesaid,  afterwards,  to  wit,  on  the  first  day  of  June  in  the  year 

of  our  Lord ,  at  F.  in  the  county  of  M.,  and  before  the 

money  so  delivered  to  him  as  aforesaid  was  by  the  said  J.  S. 
delivered  to  the  said  C.  D.  at  B.  in  the  county  of  S.,  feloni- 
ously did  embezzle  and  fraudulently  convert  the  same  to  his 
own  use ;  whereby,  and  by  force  of  the  statute  in  such  case 
made  and  provided,  the  said  J.  S.  is  deemed  to  have  com- 
mitted the  crime  of  simple  larceny.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  J.  S.,  on 

the  said  first  day  of  June  in  the  year  of  our  Lord ,  at  F. 

in  the  county  of  M.,  in  manner  and  form  aforesaid,  the  said 
money,  the  property  of  the  said  J.  N.,  from  the  said  J.  N. 
feloniously  did  steal,  take,  and  carry  away ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


CHAPTEE    XXI. 

EMBRACERY. 

1.  Indictment  for  embracer y^  hy  persuading  a  juror  to  give  his 
verdict  in  favor  of  the  defendant,  and  for  soliciting  the 
other  jurors  to  do  the  like} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  yeoman,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county 

aforesaid,  knowing  that  a  jury  of  the  said  county  of  S.  was 
then  duly  returned,  impanelled,  and  sworn  to  try  a  certain 
issue  joined  in  the  Supreme  Judicial  Court,  then  held  and  in 
session  according  to  law,  at  B.  aforesaid,  within  and  for  the 
county  of  S.,  between  E.  F.,  plaintiff,  and  G.  H.,  defendant, 
in  an  action  of  contract ;  and  then  also  knowing  that  a  trial 
was  to  be  had  upon  the  said  issue,  on  the  first  day  of  June  in 
the  year  aforesaid,  before  the  said  Supreme  Judicial  Court, 
then  and  there  held  for  the  said  county  of  S.,  the  said  C.  D. 
wickedly  and  unlawfully  intending  and  devising  to  hinder  a 
just  and  lawful  trial  of  the  said  issue  by  the  jurors  aforesaid, 
returned,  impanelled,  and  sworn  as  aforesaid,  to  try  the  said 
issue,  on  the  first  day  of  June  in  the  year  aforesaid,  at  B.  in  the 
county  aforesaid,  unlawfully,  wickedly,  and  unjustly,  on  behalf 
of  the  said  G.  H.,  the  defendant  in  the  said  cause,  did  solicit  and 
persuade  one  I.  J.,  one  of  the  jurors  of  the  said  jury,  returned, 
impanelled,  and  sworn  according  to  law  for  the  trial  of  said 


^  This  precedent  is  taken,  in  substance,  from  Tremaine's  Pleas  of  the 
Crown,  (London  ed.  1723,)  175.  See  Davis's  Justice,  (third  ed.,)  p.  433, 
434. 

17 


194  EMBRACERY.  [CHAP.  XXI. 

issue,  to  appear  and  attend  in  favor  of  the  said  G.  H.,  the  said 
defendant  in  the  said  cause ;  and  then  and  there  did  say  and 
utter  to  the  said  I.  J.,  one  of  the  jurors  as  aforesaid,  divers 
words  and  discourses  by  way  of  commendation,  on  behalf  of 
the  said  G.  H.,  the  said  defendant,  and  in  disparagement  of 
the  said  E.  F.,  the  plaintiff;  and  that  the  said  C.  D.  did  then 
and  there  unlawfully  and  corruptly  move  and  desire  the  said 
I.  J.,  to  solicit  and  persuade  the  other  jurors  returned,  impan- 
elled, and  sworn  to  try  the  said  issue,  to  give  a  verdict  for 
the  said  G.  H.,  the  defendant  in  the  said  cause,  the  said  C.  D. 
then  and  there  well  knowing  that  the  said  I.  J.  was  one  of 
the  jurors  returned,  impanelled,  and  sworn  to  try  the  said 
issue  ;  and  that  the  jurors  of  the  said  jury,  by  reason  of  speak- 
ing and  uttering  the  words  and  discourses  aforesaid,  did  give 
their  verdict  for  the  said  G.  H.,  the  said  defendant  in  the 
cause  aforesaid  ;i  against  the  peace  of  the  Commonwealth 
aforesaid,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


^  The  last  allegation  in  this  indictment,  namely,  that  the  jury  gave  their 
verdict  for  the  defendant,  by  reason  of  the  words,  discourses,  etc.,  is  not 
necessary.  The  crime  is  complete  by  the  attempt,  whether  it  succeed  or  not. 
Hawkins,  P.  C.  bk.  1,  ch.  85,  §  1,  2;  1  Deacon,  Crim.  Law,  378. 


CHAPTER    XXII. 

ESCAPE. 

1,  Indictment  against  a  constable  for  a  negligent  escape} 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of  our  Lord ,  at  the  parish  of 

B.  in  the  county  of  M.,  J.  S.,  then  being  one  of  the  constables 
of  the  said  parish,  brought  one  J.  N.  before  A.  C,  Esquire, 
then  and  yet  being  one  of  the  justices  of  the  peace  within  and 
for  the  county  aforesaid,  legally  authorized  and  duly  qualified 
to  perform  and  discharge  the  duties  of  said  office ;  and  the 
said  J.  N.  was  then  and  there  charged  before  the  said  A.  C. 
by  one  Catherine  Hope,  spinster,  upon  the  oath  of  the  said 
Catherine,  that  the  said  J.  N.  had  then  lately  before,  violently, 
and  against  her  will,  feloniously  ravished  and  carnally  known 
the  said  Catherine ;  and  the  said  J.  N.  was  then  and  there 
examined  before  the  said  A.  C,  the  justice  aforesaid,  touch- 
ing the  said  offence  so  to  him  charged  as  aforesaid ;  upon 
which  the  said  A.  C,  the  justice  aforesaid,  did  then  and  there 
make  a  certain  warrant  under  his  hand  and  seal,  in  due  form 
of  law,  bearing  date  the  first  day  of  June  in  the  year  afore- 
said, directed  to  the  keeper  of  Newgate  or  his  deputy,  com- 
manding the  said  keeper  or  his  deputy,  that  he  should  receive 
into  his  custody  the  said  J.  N.,  brought  before  him  and 
charged  upon  the  oath  of  the  said  Catherine  Hope,  with  the 
premises  above  specified;  and  the  said  justice,  by  the  said 

»  Archbold,  Crim.  PI.  (Am.  ed.  1846),  652. 


196  ESCAPE.  [chap.  XXII. 

warrant,  did  command  the  said  keeper  of  Newgate,  or  his 
deputy,  to  safely  keep  the  said  J.  N.  there  until  he  by  due 
course  of  law  should  be  discharged ;  which  said  warrant  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  was  delivered  to  the  said 
J.  S.,  then  being  one  of  the  constables  of  the  said  parish  as 
aforesaid,  and  then  and  there  having  the  said  J.  N.  in  his  cus- 
tody for  the  cause  aforesaid  ;  and  the  said  J.  S.  was  then  and 
there  commanded  by  the  said  A.  C,  the  justice  aforesaid,  to 
convey  the  said  J.  N.  without  delay,  to  the  said  jail  of  New- 
gate, and  to  deliver  the  said  J.  N.  to  the  keeper  of  the  said 
jail,  or  his  deputy,  together  with  the  warrant  aforesaid.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  J.  S.  late  of  the  parish  aforesaid,  in  the 
county  aforesaid,  baker,  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  then  being  one  of  the  constables  of  the 
said  parish  as  aforesaid,  and  then  having  the  said  J.  N.  in  his 
custody  for  the  cause  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  the  said  J.  N.  out  of  the  custody  of  the  said 
J.  S.  unlawfully  and  negligently  did  permit  to  escape,  and  go 
at  large  whithersoever  he  would,  whereby  the  said  J.  N.  did 
then  and  there  escape,  and  go  at  large  whithersoever  he 
would ;  1  to  the  great  hinderance  of  justice,  to  the  evil  ex- 
ample of  all  others  in  the  like  case  offending,  and  against  the 
peace,  etc. 

2.  Another  precedent  for  the  same? 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  fu"st 

day  of  June  in  the  year  of  our  Lord ,  at  the  parish  of 

B.  ill  the  county  aforesaid,  one  R.  T.  of,  etc.,  came  before 
J.  B.,  then  and  yet  being  one  of  the  justices  of  the  peace,  etc., 
as  in  the  j/rcrrdhig-  precedent ;  and  the  said  R.  T.  did  then 
and  till  re  on  his  oath  before  the  same  justice,  charge,  accuse. 


'  Tliis  alli'jjation  is  not  necessary.    The  State  v.  Maberry,  3  Strobhart,  144. 
'  Matthews,  CriiD.  Law,  405. 


CHAP.  XXII.]  ESCAPE.  197 

and  give  information  against  one  A.  B.  of,  etc.,  for  a  certain 
felony  [o?',  misdemeanor,  as  the  case  maij  he']  in  having  feloni- 
ously [or,  if  it  be  a  misdemeayior,  unlawfully]  stolen,  taken, 
and  carried  away  one  silver  tankard,  of  the  value  of  fifty  dol- 
lars, of  the  goods  and  chattels  of  the  said  R.  T.  Whereupon 
the  said  J.  B.,  the  justice  aforesaid,  did  then  and  there,  at  B. 
aforesaid,  in  the  county  aforesaid,  make  a  certain  warrant 
under  his  hand  and  seal  in  due  form  of  law  directed  to  the 
constable  of  B.  aforesaid,  in  the  county  aforesaid,  thereby 
requiring  the  said  constable  to  take  the  body  of  the  said  A. 
B.  and  bring  him  before  the  said  J.  B.,  the  justice  aforesaid, 
to  answer  such  matters  and  things  as  should  be  alleged 
against  him  touching  the  said  felony  [or,  misdemeanor]  ; 
which  said  warrant  afterwards,  to  wit,  on  the  same  day  and 
year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  was 
delivered  to  one  A.  C,  then  being  constable  of  B.  aforesaid, 
in  due  form  of  law  to  be  executed ;  by  virtue  of  which  said 
warrant  the  said  A.  C.  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did 
take  and  arrest  the  body  of  the  said  A.  B.,  and  the  said  A.  B. 
had  in  the  custody  of  the  said  A.  C.  for  the  cause  aforesaid.* 
Nevertheless  the  said  A.  C,  the  constable  of  B.  aforesaid,  the 
duty  of  his  office  in  that  respect  not  regarding,  afterwards,  to 
wit,  on  the  day  and  year  aforesaid,  at  B.  aforesaid,  in  the  county 
aforesaid,  unlawfully  [feloniously]  and  negligently  did  permit 
the  said  A.  B.  to  escape  and  go  at  large  out  of  the  custody  of 
the  said  A.  C.  whithersoever  he  would,  and  the  said  A.  B. 
did  then  and  there  escape  and  go  at  large  out  of  the  custody 
of  the  said  A.  C.  whithersoever  he  would;  to  the  great  hinder- 
ance  of  justice,  and  against  the  peace,  etc. 

3.  For  not  conveying;  an  offender  to  prison.^ 

The  jurors,  as  in  the  preceding  precedent  to  the  asterisk,  and 
then  proceed  thus  :  before  the  said  J.  B.,  the  justice  aforesaid, 

^  Matthews,  Crim.  Law,  46 G. 
17* 


198  ESCAPE.  [chap.   XXII. 

and  the  said  A.  B.  was  then  and  there  examined  before  the 
said  J.  B.,  the  justice  aforesaid,  touching  the  said  offence  so 
to  him  charged  as  aforesaid ;  upon  which  the  said  J.  B.,  the 
justice  aforesaid,  did  then  and  there  make  a  certain  warrant 
under  his  hand  and  seal,  in  due  form  of  law,  bearing  date  the 
said  first  day  of  June  in  the  year  aforesaid,  directed  to  R.  O., 
the  keeper  of  the  jail  of  the  said  county,  or  his  deputy,  com- 
manding the  said  keeper  or  his  deputy,  that  he  should  receive 
into  his  custody  the  said  A.  B.,  brought  before  him  and 
charged  upon  the  oath  of  the  said  R.  T.  with  the  premises 
above  specified  ;  and  the  said  justice,  by  the  said  warrant,  did 
command  the  said  keeper  of  the  said  jail  or  his  deputy  to 
safely  keep  the  said  A.  B.  there  until  he,  by  due  course  of 
law,  should  be  discharged  ;  *  which  said  warrant,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  was  delivered  to  the  said  A.  C,  then 
being  one  of  the  constables  of  the  same  parish  as  aforesaid, 
and  then  and  there  having  the  said  A.  B.  in  his  custody  for 
the  cause  aforesaid  :  and  the  said  A.  C.  was  then  and  there 
commanded  by  the  said  J.  B.,  the  justice  aforesaid,  to  convey 
the  said  A.  B.,  without  delay,  to  the  said  jail,  and  to  deliver 
the  said  A.  B.  to  the  keeper  of  the  said  jail  or  his  deputy, 
together  with  the  warrant  aforesaid.f  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the 
said  A.  C.  late  of  the  parish  aforesaid,  in  the  county  aforesaid, 
baker,  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid, 
then  being  one  of  the  constables  of  the  said  parish  as  afore- 
said, and  then  having  the  said  A.  B.  in  his  custody  for  the 
cause  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said,! unlawfully  and  wilfully  neglecting  his  duty  in  that  be- 
half, (lid  not  convey  the  said  A.  B.  without  delay  to  the  said 
jail,  and  dc'liv(;r  the  said  A.  B.  to  the  keeper  of  the  said  jail 
or  his  deputy,  togc^tlier  with  the  warrant  as  aforesaid;  to  the 
great  liindcraiicror  justice,  lo  llic  evil  example  of  all  others  in 
the  like  case  ollcnding,  and  against  the  peace,  etc. 

Tu  use  this  precedent  for  a  nr^'-/i<:;-ent  escape,  proceed  to  the  J, 
and  then  as  follows :  the  said  A.  B.  out  of  the  custody  of  the 


CHAP.  XXII.]  ESCAPE.  199 

said  A.  C.  unlawfully  and  negligently  did  permit  to  escape 
and  go  at  large  whithersoever  he  would,  whereby  the  said 
A.  C.  did  then  and  there  escape  and  go  at  large  whithersoever 
he  would ;  to  the  great  hinderance  of  justice,  etc.,  concluding^ 
as  above. 


4.  Indictment  for  escaping  out  of  the  custody  of  a  constable} 

State  the  charge  before  the  magistrate,  the  warrant  of  com- 
mitment, and  the  defendant's  being  in  the  custody  of  J.  S.,  as  in 
precedent  number  one,  to  the  asterisk,  and  then  proceed  thus : 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  farther 
present,  that  the  said  J.  N.  late  of  the  parish  aforesaid,  in  the 
county  aforesaid,  laborer,  so  being  in  the  custody  of  the  said 
J.  S.,  under  and  by  virtue  of  the  warrant  aforesaid,  afterwards, 
and  whilst  he  continued  in  such  custody,  and  before  he  was 
delivered  by  the  said  J.  S.  to  the  said  keeper  of  Newgate,  or 
his  deputy,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  out  of  the  cus- 
tody of  the  said  J.  S.  unlawfully  did  escape,  and  go  at  large 
whithersoever  he  would;  to  the  great  hinderance  of  justice,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

5.  Indictment  against  a  jailer  for  a  voluntary  escape? 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 

wit,  at  the  general  quarter-sessions  of  the  peace  holden  at , 

so  continuing  the  record  of  the  conviction  of  the  party  who 
escaped,  stating  it,  hoivever,  in  the  past  and  not  in  the  present 
tense,  then  proceed  thus :  as  by  the  record  thereof  more  fully 
and  at  large  appears;  which  said  judgment  still  remains  in 
full  force  and  effect,  and  not  in  the  least  reversed  or  made 
void.    And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid. 


*  Archbold,  Crim.  PL  (Am.  ed.  1846),  653. 
«  Archbold,  Crim.  PI.  (Am.  ed.  184G),  654. 


200  ESCAPE.  [chap.  XXII. 

do  further  present,  that  afterwards,  to  wit,  at  the  said  general 
quarter-sessions  of  the  peace  above  mentioned,  the  said  J.  N, 
was  then  and  there  committed  to  the  care  and  custody  of  J.  S., 
the  said  J.  S.  then  and  still  being  keeper  of  the  common  jail 
in  and  for  the  said  county  of  Berks,  there  to  be  kept  and  im- 
prisoned in  the  jail  aforesaid,  according  to  and  in  pursuance 
of  the  judgment  and  sentence  aforesaid ;  and  the  said  J.  S. 
the  said  J.  N.  then  and  there  had  in  the  custody  of  the  said 
J.  S.  for  the  cause  aforesaid,  in  the  jail  aforesaid.  And  the 
jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  J.  S.  late  of  the  parish  of  L.  in  the  said 
county  of  Berks,  yeoman,  afterwards,  and  before  the  expira- 
tion of  the  six  calendar  months  for  which  the  said  J.  N.  was 
so  ordered  to  be  imprisoned  as  aforesaid,  and  whilst  the  said 
J.  N.  was  so  in  the  custody  of  the  said  .T.  S.  as  such  keeper  of 
the  said  common  jail  as  aforesaid,  to  wit,  on  the  first  day  of 
June  in  the  year  last  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  feloniously,  if  the  offence  for  ivhich  J.  N. 
icas  convicted  were  a  felony,  unlawfully,  voluntarily,  and  con- 
temptuously did  permit  and  suffer  the  said  J.  N.  to  escape, 
and  go  at  large  whithersoever  he  would ;  whereby  the  said  J. 
N.  did  then  and  there  escape  out  of  the  said  prison,  and  go  at 
large  whithersoever  he  would ;  contrary  to  the  duty  of  the 
said  J.  S.,  so  being  keeper  of  the  jail  aforesaid,  in  manifest 
hinderance  of  justice,  to  the  evil  example  of  all  others  in  the 
like  case  offending,  and  against  the  peace,  etc. 

6.  Indictment  for  breaking'  prison.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of   June  in  the  year  of  our  Lord  ,  J.  S.  then  and 

yet  being  one  of  the  justices  of  the  peace  within  and  for 
the  counly  of  M.,  legally  authorized  and  duly  qualified  to 
di.sc;harge  and  perform  llie  duties  of  that  oilice,  one  J.  N. 
was  then  and  there  charged  before   the  said  J.    S.,  by  one 

'  Arcbbold,  Crim.  PI.  (London  cd.  1853),  G37. 


CHAP.  XXII.]  ESCAPE.  201 

Catherine  Hope,  spinster,  upon  the  oath  of  the  said  Cathe- 
rine, that  the  said  J.  N.  had  then  lately  before,  violently,  and 
against  her  will,  feloniously  ravished  and  carnally  known  the 
said  Catherine ;  and  the  said  J.  N.  was  then  and  there  exam- 
ined before  the  said  J.  S.,  the  justice  of  the  peace  aforesaid, 
touching  the  said  offence  so  to  him  charged  as  aforesaid ; 
upon  which  the  said  J.  S.,  justice  of  the  peace  as  aforesaid, 
did  then  and  there  make  a  certain  warrant  of  commitment 
under  his  hand  and  seal,  in  due  form  of  law,  bearing  date  the 
said  first  day  of  June  in  the  year  aforesaid,  directed  to  the 
keeper  of  the  jail  situated  at  C.  in  said  county,  commanding 
the  said  keeper  that  he  should  receive  into  his  custody  the 
said  J.  N.,  brought  before  him  and  charged,  upon  the  oath  of 
the  said  Catherine  Hope,  with  the  premises  above  specified ; 
and  the  said  justice  of  the  peace,  by  the  said  warrant,  did 
command  the  said  keeper  of  the  jail  situated  at  C,  in  the 
county  of  M.,  to  safely  keep  the  said  J.  N.  there  until  he  by 
due  course  of  law  should  be  discharged ;  by  virtue  of  which 
said  warrant,  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, the  said  J.  N.  was  taken  and  conveyed  to  the  said  jail 
at  C.  aforesaid,  and  then  and  there  delivered  to  one  W.  S., 
the  keeper  of  the  said  jail;  and  the  said  W.  S.,  keeper  of  the 
said  jail,  then  and  there  received  the  said  J.  N.  in  his  custody 
in  the  jail  at  C.  aforesaid.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  J.  N. 
afterwards,  and  whilst  he  so  remained  in  custody  of  the  said 
W.  S.,  keeper  of  the  said  jail,  under  and  by  vu-tue  of  the  war- 
rant aforesaid,  to  wit,  on  the  third  day  of  September  in  the 
year  last  aforesaid,  feloniously,  if  he  was  committed  for  trea- 
son or  felony^  unlawfully,  wilfully,  and  injuriously  did  break 
the  jail  situated  at  C.  aforesaid,  by  then  and  there  cutting 
and  sawing  two  iron  bars  of  the  said  jail,  and  by  then  and 
there  breaking,  cutting,  and  removing  a  great  quantity  of 
stone,  parcel  of  the  wall  of  the  jail  aforesaid;  by  means 
whereof  the  said  J.  N.  did  then  and  there  escape  and  go  at 
large  whithersoever  he  would  ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


202  ESCAPE.  [chap.  XXII. 

7.  For  conveying  instruments  to  a  prisoner  to  enable  him  to 

escape} 

The  jurors,  proceed  as  in  numbers  two,  three,  and  six  respec- 
tively, to  the  asterisk,  and  then  thus :  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  J.  T.  late 
of  the  parish  of  B.  in  the  county  of  S.,  laborer,  afterwards, 
and  whilst  the  said  A.  B.  was  and  remained  in  the.  custody  of 
the  said  S.  W.,  in  the  jail  of  Newgate  aforesaid,  namely,  on  the 
first  day  of  June  in  the  year  last  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  feloniously  and  unlawfully  did 
convey,  and  cause  to  be  conveyed,  into  the  said  jail  of  New- 
gate, two  steel  files,  being  instruments  proper  to  facilitate  the 
escape  of  prisoners ;  and  the  same  files,  being  such  instru- 
ments as  aforesaid,  then  and  there  feloniously  did  deliver,  and 
cause  to  be  delivered,  to  the  said  A.  B.,  without  the  consent 
or  privity  of  the  keeper  or  underkeeper  of  the  said  jail  of 
Newgate,  the  said  A.  B.  then  and  there  being  a  prisoner  in 
the  said  jail,  and  then  and  there  lawfully  detained  for  the  fel- 
ony and  larceny  aforesaid,  in  the  said  warrant  of  commitment 
above  mentioned  and  expressed,  and  that  the  said  files,  being 
such  instruments  as  aforesaid,  were  then  and  there  so  con- 
veyed into  the  said  jail,  and  delivered  to  the  said  A.  B.  by  the 
said  J.  T.  as  aforesaid,  with  the  felonious  intent  then  and 
there  to  aid  and  assist  the  said  A.  B.,  so  being  such  prisoner 
and  in  custody  as  aforesaid,  to  escape  and  attempt  to  escape 
from  and  out  of  the  said  jail;  against  the  peace,  etc.,  and 
contrary  to  the  form,  etc. 


1  :Mattliews,  Crini.  Law,  -108.  An  indictment  on  St.  Geo.  4,  eh.  64,  §  43, 
w'bieli  enacts,  that  "  if  any  person  shall,  by  any  means  whatever,  aid  and  assist 
any  prisoner  to  escape,"  etc.,  it  is  not  necessary  to  set  fortli  tlie  moans  em- 
ployed by  the  defendants  for  that  purpose.  Ilolloway  v.  llegina,  2  Denison, 
C.  C.  287 ;  5  Eng.  Law  and  Eq.  Hep.  310. 


CHAPTER    XXIII. 

EXTORTION. 

An  indictment  for  extortion  must  allege  that  the  defend- 
ant took  so  much  extorsive  and  colore  officii,  which  are  words 
as  essential  as  proditorie  or  felonice  in  indictments  for  treason 
and  felony.^  The  sum  which  the  defendant  received  must  be 
stated ;  but  it  is  not  material  to  prove  the  exact  sum  as  laid.^ 
Where  nothing  was  due,  that  fact  ought  to  be  averred ;  and 
where  any  thing  was  due,  the  sum  that  might  have  been  law- 
fully taken  must  be  averred.^  It  is  not  necessary  that  the 
thing  extorted  should  be  said  to  be  the  property  of  any  per- 
son. The  word  extort  has  a  certain  technical  meaning,  and 
when  a  person  is  charged  with  extorsively  taldng,  the  very 
import  of  the  word  shows  that  he  is  not  acquiring  possession 
of  his  own.* 

1.  Indictment  ag-ainst  a  constable  for  extortion.^ 
The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of  the 

'  It  is  sufficient  to  charge  generally,  that  the  defendant  took  the  money,  hy 
color  of  Ms  office,  without  specifying  that  he  received  it  as  fees,  or  to  his  own 
use.  The  People  v.  Whaley,  6  Cowen,  661.  See  The  State  v.  Stotts,  5 
Blackford,  460. 

'  Gabbett,  Crim.  Law,  784.  See  Emory  v.  The  State,  6  Blackford,  106; 
Seany  v.  The  State,  6  Blackford,  403 ;  The  State  v.  Dickens,  1  Haywood, 
(N.  Carolina,)  406. 

^  Lake's  case,  2  Leonard,  268  ;  The  State  v.  Coggswell,  3  Blackford,  54  y 
Rex  V.  Burdett,  1  Lord  Raymond,  149 ;  Rex  v.  Gilham,  6  Term  Rep.  265 ;. 
Halsey  v.  The  State,  1  Southard,  324;  Spence  v.  Thomson,  11  Alabama,, 
746,  750;  Boothby,  Crim.  Law,  (London  ed.  1854,)  107. 

*  Regina  v.  Tiddeman,  4  Cox,  C.  C.  387,  (1850). 

*  Archbold,  Crim.  PI.  (Am.  ed.  1846),  687. 


204  EXTORTION.  [chap.  XXIII. 

parish  of  B.  in  the  county  of  M.,  baker,  on  the  first  day  of  June 

in  the  year  of  our  Lord ,  then  being  one  of  the  constables 

of  the  said  parish,  at  the  parish  aforesaid,  in  the  county  afore- 
said, did  take  and  arrest  one  J.  N.,  by  color  of  a  certain  war- 
rant, commonly  called  a  bench  warrant,  which  the  said  J.  S. 
then  and  there  alleged  to  be  in  his  possession ;  and  that  the 
said  J.  S.  afterwards,  and  whilst  the  said  J.  N.  so  remained 
in  his  custody  as  aforesaid,  to  wit,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully, wilfully,  corruptly,  deceitfully,  extorsively,  and  by  color 
of  his  said  office,  did  extort,  receive,  and  take  of  and  from  the 
said  J.  N.  the  sum  of  ten  dollars,  as  and  for  a  fee  due  to  the 
said  J.  S.  as  such  constable  as  aforesaid,  for  the  obtaining 
and  discharging  of  the  said  warrant,  as  the  said  J.  S.  then  and 
there  alleged ;  whereas,  in  truth  and  in  fact,  no  fee  whatever 
was  then  due  from  the  said  J.  N.  to  the  said  J.  S.  as  such 
constable  as  aforesaid  in  that  behalf;  to  the  evil  and  per- 
nicious example  of  all  others  in  the  like  case  offending, 
against  the  peace,  etc.,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


CHAPTER    XXIV. 


FORCIBLE   ENTRY   AND   DETAINER. 


An  indictment  will  lie  at  common  law  for  the  offences  of 
forcible  entry  or  detainer,  although  it  is  generally  brought  on 
the  statutes.!  With  respect  to  the  form  of  an  indictment 
upon  those  statutes,  it  is  to  be  observed  that  no  particular  or 
technical  words  are  necessary  to  describe  the  force  with  which 
the  entry  is  made ;  though  as  the  St.  5  Ric.  2,  ch.  8,  which  is 
the  foundation  of  the  other  statutes,  prohibits  entries  with 
"strong  hand,"  or  "with  multitudes  of  people,"  these  are  the 
apt  words  to  designate  the  offence.  Equivalent  words  will, 
however,  it  seems,  be  sufficient ;  as  all  that  is  required  in  that 
respect  is,  that  it  should  appear  by  the  indictment,  that  such 
force  and  violence  have  been  used  as  constitute  a  public 
breach  of  the  peace.  But  neither  at  common  law,  nor  under 
the  statutes,  will  it  be  sufficient  to  allege  merely  that  the 
party  entered  vi  et  annis,  because  that  is  the  common  allega- 
tion in  every  action  of  trespass.  The  words  "  with  a  strong 
hand  "  mean  something  more  than  a  common  trespass ;  and 
an  allegation  that  the  entry  was  made  unlawfully,  with  force 
and  arms,  and  with  a  strong  hand,  is  sufficient.^ 

The  tenement  in  which  the  force  was  committed  must  be 
described  with  sufficient  certainty ;  for,  otherwise,  the  defend- 
ant will  neither  know  the  particular  charge  to  which  he  is 


^  Commonwealtli  v.  Sbattuck,  4  Gushing,  141 ;  The  State  v.  Harding,  1 
Greenleaf,  (Bennett's  ed.),  21 ;  Wilmot,  J.,  Rex  v.  Bake,  3  Burrow,  1731  ; 
Eex  V.  Bathurst,  Sayer,  225  ;  Lord  Kenyon,  Rex  i'.  Wilson,  8.  Term  Rep. 
357,  362.     See  The  State  v.  Whitfield,  8  Iredell,  315. 

'  Commonwealth  v.  Sbattuck,  4  Gushing,  141 ;  Rex  v.  Wilson,  8  Term 
Rep.  3G2;  Rex  v.  Bathurst,  Sayer,  225;  The  State  v.  Pearson,  2  New 
Hampshire,  550. 

18 


206  FORCIBLE    ENTRY    AND    DETAINER.        [ciIAP.  XX^V^ 

to  make  his  defence,  nor  will  the  justice  or  sheriff  know  how 
to  restore  the  injured  party  to  his  possession.  But  certainty 
to  a  reasonable  intent  is  all  that  is  required.^  Thus,  an 
indictment  of  forcible  entry  "  into  a  tenement,"  which  may 
signify  any  thing  wherein  a  man  may  have  an  estate  of  free- 
hold; or  "into  a  house  or  tenement,"  or  "into  two  closes  of 
meadow  or  pasture,"  "  a  rood  or  half  a  rood  of  land,"  or  such 
like  uncertain  or  equivocal  description,  is  not  good ;  but  an 
indictment  for  a  forcible  entry  "in  domum,  mansionalem,  sive 
messuag-him,''^  has  been  held  sufficient.  And  so  an  indictment 
for  an  entry  into  a  close  called  Sergeant  Hern's  close,  with- 
out adding  the  number  of  acres,  is  sufficient ;  for  here  is  as 
much  certainty  as  is  required  in  an  ejectment.^  And  it  has 
been  held,  that  an  indictment  may  be  void  as  to  such  part  of 
it  only  as  is  uncertain,  and  good  for  so  much  as  is  certain. 
Thus  an  indictment  for  a  forcible  entry  into  a  house  and  cer- 
tain acres  of  land,  may  be  quashed  as  to  the  land,  and  stand 
good  as  to  the  house ;  and  so  vice  versd,  if  the  uncertainty  be 
in  the  description  of  the  house,  and  not  of  the  land.^ 


^  Torrence  i\  The  Commonwealth,  9  Barr,  184 ;  Yanpool  v.  The  Common- 
wealth, 13  Pennsylvania  State  Rep.  391. 

-  1  Hawkins,  P.  C.  ch.  28,  §  7 ;  1  Gabbett,  Crim.  Law,  327;  The  State  v. 
Butler,  Cameron  &  Norwood,  331.  And  see  McNair  v.  RempubHcam,  4 
Yeates,  326.  It  is  sullicient  to  describe  the  premises  as  "  a  certain  close  of 
two  acres  of  arable  land,  situate  in  S.  township,  in  the  county  of  H.,  being 
part  of  a  large  tract  adjoining  lands  of  A.  B.  and  C.  D."  A  description  of 
the  premises  was  held  sufficient,  wliich  gave  the  number  of  acres,  town, 
county,  and  two  adjoining  tracts  of  land.  Dean  v.  The  Commonwealth,  3 
Sergeant  &  Kawle,  418.  The  following  is  also  a  sufficient  description:  "  A 
certain  messuage  and  tract  of  land,  situated  in  the  township  and  county 
aforesaid,  and  described  as  follows :  All  that  piece  of  land  containing  seventy- 
six  acres  and  one  hundred  and  fifty  perches,  and  the  allowance  of  six  per 
cent.,  it  being  a  ])art  of  a  large  tract,  known  its  the  Peter  Jackson  improve- 
ment, adjoining  lands  of  David  Henderson  on  the  east."  And  such  descrip- 
tion, together  with  the  averment  that  the  prosecutrix  was  seized  of  the  prem- 
ises, in  her  demesne  iIH  of  fee,  will  sui)j)urt  a  judgment  of  restitution.  Van- 
pool  V.  The  Conunonwealth,  13  Pennsylvania  State  Hep.  391. 

'  Farn.ini's  case,  2  Leonard,  18G;  Wroth  and  CapeU'e  case,  3  Leonard, 
102;  1  Gabbett,  Crim.  Law,  327. 


CHAP.  XXIV.]         FORCIBLE   ENTRY   AND   DETAINER.  207 

The  indictment  ought  to  show  that  the  entry  was  made  on 
the  possession  of  some  person  who  had  had  some  estate  in  the 
tenement,  either  as  a  freeholder  or  lessee  for  years,  etc.,  for 
otherwise  it  does  not  appear  that  such  entry  was  injurious  to 
any  one ;  and  if  it  did  not  appear  what  estate  the  person  ex- 
pelled had  in  the  premises,  it  would  be  uncertain  whether  any 
of  the  statutes  relatina:  to  forcible  entries  extended  to  the 
estate  from  which  the  expulsion  was  made.^  And  therefore 
an  indictment  setting  forth  in  general  that  the  party  was  pos- 
sessed, is  not  good  ;  for  it  may  be  intended  that  he  was  pos- 
sessed only  by  virtue  of  a  lease  at  will,  to  which  none  of  the 
statutes  extend.2  But,  at  common  law,  where  the  prosecutor 
is  not  entitled  to  restitution  or  damages,  and  where  all  force 
of  this  kind  is  punishable  without  regard  to  what  estate  the 
party  had  on  whom  the  entry  is  made,  it  appears  to  be  suffi- 
cient to  state  that  the  prosecutor  was  in  possession  of  the 
premises.^  But  even  in  an  indictment  under  the  statutes,  it 
is  sufficient,  if  there  are  such  words  as  necessarily  imply  such 
an  estate  as  is  within  the  statute ;  as  where  it  is  expressly 
laid,  that  the  defendant  disseized  J.  S.,  etc.,  it  is  implicitly 
charged  that  J.  S.  was  seized  of  the  freehold  at  the  time.^ 

A  repugnancy  in  setting  forth  the  offence  in  an  indictment 
on  those  statutes  is,  as  in' other  indictments,  an  incurable 
fault ;  as  if  it  set  forth  a  disseizin  of  such  an  estate  whereof 
it  is  impossible  that  any  man  can  be  disseized ;  as  a  term  for 
years  or  copyhold ;  or  if  the  indictment  state  the  disseizin  to 
be  of  land  then  and  still  being  the  freehold  of  J.  S. ;  inas- 
much as  it  implies  that  J.  S.  always  continued  in  possession, 
which,  if  true,  makes  it  impossible  that  he  could  be  disseized 


^  Pwex  V.  Wannop,  Saycr,  142 ;  Rex  v.  Dorny,  Salkeld,  260 ;  1  Ventris,  89. 
See  The  State  v.  Butler,  1  Taylor,  269. 

^  The  State  v.  Speirin,  1  Brevard,  119.  See  Respublica  v.  Campbell,  1 
Dallas,  354 ;  The  State  v.  Pearson,  2  New  Hampshire,  550. 

'  The  State  v.  Speirin,  1  Brevard,  119;  The  State  v.  Harding,  1  Green- 
leaf,  (Bennett's  ed.),  21.     See  Regina  v.  Child,  1  Cox,  C.  C.  102. 

*  1  Hawkins,  P.  C.  ch.  28,  §  38 ;  1  Gabbett,  Crim.  Law,  328. 


208  FORCIBLE  ENTRY  AND  DETAINER.   [cHAP.  XXfV. 

at  all.^  But  a  disseizin  is  sufficiently  set  forth  by  alleging 
that  the  defendant  "  entered  into  such  a  tenement,  and,  with 
a  strong  hand,  the  said  A.  B.  disseized,  or  expelled ; "  and  it 
will  be  intended  thereby  that  the  disseizin  was  at  the  same 
time  and  place  with  the  entry ;  for  the  forcible  entry  being 
the  principal  offence  within  the  purview  of  these  statutes,  the 
disseizin  is  only  added  to  show  that  the  party  grieved  had  a 
right  to  restitution ;  and  the  word  "  disseized "  does  in  itself 
also  imply  that  the  defendant  unlawfully  ousted  or  expelled 
the  party  from  the  tenement,^  and  also  a  previous  seizin.^ 
The  indictment  cannot  warrant  an  award  of  restitution, 
unless  it  find  that  the  wrongdoer  both  ousted  the  party 
grieved,  and  also  continued  his  possession  at  the  time  of  the 
finding  of  the  indictment ;  for  it  is  a  repugnancy  to  award 
restitution  of  possession  to  one  who  was  never  in  possession ; 
and  it  is  vain  to  award  it  to  one  who  does  not  appear  to  have 
lost  it.*  It  seems  to  be  noway  material  to  an  indictment  for 
a  forcible  detainer,  whether  it  appears  that  the  entry  was  for- 
cible or  not ;  because  from  the  words  of  the  statute  it  appears 
that  a  forcible  detainer  is  a  distinct  offence  from  that  of  a  for- 
cible entry,  and  noway  depending  upon  it.^ 

1.  For  forcible  entry  and  detainer  at  common  law.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late 
of  the  parish  of.  B.  in  the  county  of  M.,  gentleman,  C.  D.  of 
the  same  parish,  carpenter,  and  E.  F.  of  the  same  parish, 
laborer,  togeiher  with  divers  other  persons,  to  the  number  of 
or  more,  whose  names  to  the  jurors  aforesaid  are  un- 
known, on  the  first  day  of  vjune  in  the  year  of  our  Lord 

*  1  Hawkins,  P.  C.  ch.  28,  §  39 ;  1  Gabbett,  Grim.  Law,  328.  See  Res- 
publica  V.  Shryber,  1  Dallas,  C8. 

»  liaiide's  case,  Croke,  Jac.  41  ;  1  Hawkins,  V.  G.  ch.  28,  §  42. 
'  GomiiionweaUh  i'.  Fitch,  4  Dallas,  212. 

♦  1  IfawkiiiH,  r.  G.  ch.  28,  §  41  ;  1  Gabbett,  Grim.  Law,  328. 
»  1  Hawkins,  V.  G.  ch.  28,  §  4G. 

•  Matthews,  Grini.  Law,  4  75. 


CHAP.  XXIV.]         FORCIBLE   ENTRY   AND   DETAINER.  209 

,  with  force  and  arms,  to  wit,  with  pistols,  swords,  sticks, 


staves,  and  other  offensive  weapons,  at  tlie  parish  aforesaid, 
in  the  county  aforesaid,  into  a  certain  messuage  with  the 
appurtenances,  and  a  certain  orchard  there  situate  and  being, 
and  then  and  there  in  the  possession  of  one  R.  T.,  unlawfully, 
violently,  forcibly,  injuriously,  and  with  a  strong  hand  did 
enter ;  and  the  said  A.  B.,  C.  R,  and  E.  F.,  together  with  the 
said  other  evil-disposed  persons,  Vv^hose  names  to  the  jurors 
aforesaid  are  unknown,  as  aforesaid,  then  and  there  with 
force  and  arms,  to  wit,  with  pistols,  swords,  sticks,  staves, 
and  other  offensive  weapons,  unlawfully,  violently,  forcibly, 
injuriously,  and  with  a  strong  hand,  the  said  A.  B.  from  the 
possession  of  the  said  messuage  with  the  appurtenances,  and 
from  the  possession  of  the  said  orchard,  did  expel,  amove,  and 
put  out ;  and  the  said  A.  B.,  so  as  aforesaid  expelled,  amoved, 
and  put  out  from  the  possession  of  the  said  messuage  with 
the  appurtenances  and  orchard,  then  and  there  with  force 
and  arms,  to  wit,  with  pistols,  swords,  sticks,  staves,  and 
other  offensive  weapons,  unlawfully,  violently,  forcibly,  injuri- 
ously, and  with  a  strong  hand,  did  keep  out,  and  still  do  keep 
out,  and  other  wrongs  to  the  said  A.  B.  then  and  there  did  ; 
to  the  great  damage  of  the  said  A.  B.,  and  against  the 
peace,  etc. 

2.  For  a  forcible  entrf/  into  a  freehold,  on  St.  5  R.  2,  ch.  8.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  one  J.  N.  late 
of  the  parish  of  B.  in  the  county  of  M.,  on  the  first  day  of 

June  in  the  year  of  our  Lord ,  in  the  parish  aforesaid, 

in  the  county  aforesaid,  was  seized  in  his  demesne  as  of  fee  of 
and  in  a  certain  messuage,  with  the  appurtenances  there  situ- 
ate and  being ;  and  the  said  J.  N.,  being  so  seized  thereof  as 
aforesaid,  J.  S.,  late  of  the  parish  aforesaid,  in  the  county 
aforesaid,  laborer,  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  in  the  parish  aforesaid,  in  the  county  aforesaid, 
into  the  said  messuage  and  appm*tenances  aforesaid,  with 


^  Archbold,  Crim.  PI.  (London  ed.  1853,)  682  ;  Matthews,  Crim.  Law,  474. 

18* 


210  FORCIBLE   ENTRY   AND   DETAINER.         [CHAP.  XXIV. 

force  and  arms,  and  with  a  strong  hand,  unlawfully  did  enter, 
and  the  said  J.  N.  from  the  peaceable  possession  of  the  said 
messuage,  with  the  appurtenances  aforesaid,  then  and  there 
with  force  of  arms,  and  wdth  a  strong  hand,  unlawfully  did 
expel  and  put  out;  and  the  said  J.  N.  from  the  possession 
thereof  so  as  aforesaid,  with  force  and  arms,  and  with  a 
strong  hand,  being  unlawfully  expelled  and  put  out,  the  said 
J,  S.  from  the  aforesaid  first  day  of  June  in  the  year  aforesaid, 
until  the  day  of  the  taking  of  this  inquisition,  from  the  posses- 
sion of  the  said  messuage,  with  the  appurtenances  aforesaid, 
with  force  and  arms,  and  with  a  strong  hand,  then  and  there 
unlawfully  and  injuriously  did  keep  out,  and  still  doth  keep 
out;  to  the  great  damage  of  the  said  J.  N.,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  etc. 


3.  Indictment  for  a  forcible  entry  into  a  leasehold^  etc.,  on  St. 

21  J.  1,  ch.  15.1 

This  map  be  the  same  as  the  last  precedent,  ivith  such  alter' 
ations  only  as  are  necessary  to  adapt  it  to  a  term  for  years,  etc., 
as  thus :  that  J.  N.  late  of,  etc.,  etc.,  was  possessed  of  a  cer- 
tain messuage  with  the  appurtenances  there  situate  and  being, 
for  a  certain  term  of  years,  whereof  divers,  to  wit,  ten  years, 
were  then  to  come,  and  are  still  unexpired ;  and  the  said  J.  N. 
being  so  possessed  thereof,  etc.,  etc.,  as  in  the  last  precedent. 

4.  For  a  forcible  detainer,  on  St.  8  H.  6,  ch.  9,  or  21  J.  1, 

ch.  15.2 

The  same  as  in  the  last  two  precedents  respectively,  to  the 
end  of  the  statement  of  the  seizin  or  possession ;  then  proceed 
thus  :  and  the  said  J.  N.  being  so  seized  [or,  possessed]  thereof, 

'  Arclil.fil'l,  Crliii.  n.  (London  ed.  1853,)  G8i  ;  Matthews,  Crim.  Law, 
4  75. 

*  Archbold,  Crim.  PI.  (Loudon  cd.  1853,)  C84 ;  Matthews,  Crim.  Law^ 
475. 


CHAP.  XXIV.]        FORCIBLE   ENTRY  AND   DETAINER.  211 

J.  S.  late  of  the  parish  aforesaid,  in  the  county  aforesaid, 
laborer,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  into  the  said 
messuage,  with  the  appurtenances  aforesaid,  unlawfully  did 
enter,  and  the  said  J.  N.  from  the  peaceable  possession  of 
the  said  messuage,  with  the  appurtenances  aforesaid,  then 
and  there  unlawfully  did  expel  and  put  out ;  and  the  said 
J.  N.  from  the  possession  thereof  so  as  aforesaid  being  unlaw- 
fully expelled  and  put  out,  the  said  J.  S.,  from  the  said  first 
day  of  June  in  the  year  aforesaid,  until  the  day  of  the  taking 
of  this  inquisition,  from  the  possession  of  the  said  messuage, 
with  the  appurtenances  aforesaid,  with  force  and  arms,  and 
with  a  strong  hand,  unlawfully  and  injuriously  then  and  there 
did  keep  out  and  the  said  messuage  with  the  appurtenances 
and  the  possession  thereof  then  and  there  unlawfully  and  for- 
cibly did  hold,  and  still  doth  hold,  from  the  said  J.  N. ;  to  the 
great  damage  of  the  said  J.  N.,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace,  etc. 


CHAPTER    XXV 


FORGERY   AND    COUNTERFEITING/ 

It  is  necessary  to  consider  the  manner  in  which  the  offence 
is  to  be  laid  in  the  indictment.  And  the  first  general  rule 
upon  this  subject  is,  that  the  indictment  must  not  only  set 
out,  but  it  must  also  profess  to  set  out,  the  instrument  alleged 
to  be  forged,  according  to  its  tenor,  that  is,  in  the  words  and 
figures  thereof;  in  order  that  the  court  may  see  how  far  it  be 
any  of  those  instruments,  the  falsely  making  or  knowingly 
uttering  of  which  the  law  has  said  shall  be  considered  for- 
gery ;  although,  in  general,  neither  figures  nor  abbreviations 
are  proper  to  be  used  in  indictments.  And  so  strict  was 
this  rule  conceived  to  be,  that  in  one  case  it  was  made  a  ques- 
tion, whether  substituting  the  word  "  undertood  "  for  "  under- 
stood "  was  not  a  fatal  variance.^     And  in  another  case,  the 


*  Rex  V.  Gilchrist,  2  Leach,  C.  C.  (Uh  London  ed.),  G57,  661  ;  Common- 
Tveahh  V.  Wright,  1  Gushing,  46  ;  Wright  v.  Clements,  3  Barnewall  &  Alder- 
son,  508 ;  The  State  v.  Gustin,  2  Pouthard,  744  ;  The  State  v.  Twitty,  2 
Hawks,  248;  2  East,  V.  C.  975;  1  Gabbett,  Crim.  Law,  370.  And  see 
Rugina  ?;.  Coulson,  1  Temple  &  Mew,  C.  C.  332 ;  4  Cox,  C.  C.  227;  1  Den- 
ison,  C.  C.  592;  1  Eng.  Law  and  Eq.  Rep.  550;  ante,  p.  90.  The  number 
of  a  bank-bill,  and  the  words  and  figures  in  the  margin,  and  the  vignettes 
need  not  be  set  out.  It  is  sufficient  to  set  out  what  constitutes  the  contract 
of  the  bill ;  but  that  must  be  done  truly  and  jirecisely.  Commonwealth  r. 
Taylor,  5  Gushing,  605  ;  Gommonwcallh  v.  Wilson,  ^lass.  Sup.  Jud.  Court, 
IMifldlescx,  Oct.  T.  185.1  ;  Commonwealth  v.  Searle,  2  IJinney,  332;  Com- 
monwealth V.  IJailey,  1  Mass.  62 ;  Commonwealth  v.  Stevens,  1  Mass.  324 ; 
The  State  v.  Carr,  5  New  Hampshire,  2G7. 

»  Rex  V.  Ueech,  Cowpcr,  229;  2  Leach,  C.  C.  (4th  London  cd.),  133. 


CHAP.  XXV.]  FORGERY   AND   COUNTERFEITING.  213 

changing  the  words  "  value  received  "  into  "  value  reiceved  " 
in  setting  forth  the  instrument,  was  insisted  on  as  a  fatal  ob- 
jection to  the  indictment.!  These  objections  were  however 
overruled,  upon  the  principle  established  in  Regina  v.  Drake, 
namely,  "  That  unless  the  omission  or  addition  of  a  letter 
does  so  change  the  word  as  to  make  it  another  word,  the 
variance  is  not  material."  ^  And  in  another  case,  it  was  at 
first  doubted  whether  the  indictment  was  sufficiently  proved, 
because  it  included  the  attestation  of  the  witness,  and  the 
words  "  Mary  Wallace,  her  mark,"  in  the  tenor  of  the  note 
charged  to  have  been  forged ;  the  fact  being,  that  when  the 
prisoner  subscribed  the  note,  those  parts  of  it  were  not  then 
written.  But  Perrot,  B.,  and  Aston,  J.,  whom  the  Recorder 
consulted,  being  of  opinion  that  the  indictment  was  well 
proved,  he  directed  the  jury  accordingly.  For  which  decision 
this  reason  may  be  assigned,  that  the  addition  of  the  attesta- 
tion of  the  witness,  and  of  the  words  "  his  or  her  mark^^^  were 
on  this  occasion,  as  they  usually  are,  concomitant  with  that 
mode  of  executing  the  instrument,  and  a  part  of  the  same 
transaction.^  We  may  here  observe,  that  when  the  instru- 
ment which  is  the  subject  of  the  forgery  is  set  forth  according 
to  its  tenor,  no  technical  form  of  words  is  necessary  for  ex- 
pressing that  the  instrument  is  so  set  forth.  And  therefore 
it  was  decided,  that  the  words  "  a  certain  receipt  for  money,  as 
follows,  that  is  to  say,"  were  as  certain  as  if  it  had  been  said 
"  according  to  the  tenor  following,  that  is  to  say."  *  Where  the 
instrument  on  which  the  indictment  rests  is  in  the  defendant's 
possession,  or  cannot  be  produced,  and  there  is  no  laches  on 
the  part  of  the  government,  it  is  necessary  to  aver  in  the 
indictment  such  facts  as  are  sufficient  to  excuse  the  non- 
description  of  the  instrument,  and  then  to  proceed,  either  by 

^  Rex  V.  Hart,  1  Leach,  C.  C.  (4tb  London  ed.),  145 ;  2  East,  P.  C.  977. 

'  Salkeld,  660;  1  Starkie,  Crim.  PI.  (London  ed.  1828,)  101;  United 
States  V.  Hinman,  Baldwin,  292;  The  State  v.  Bean,  19  Vermont,  530; 
The  State  v.  Weaver,  13  Iredell,  491. 

*  Rex  V.  Dunn,  2  East,  P.  C.  976. 

*  Rex  V.  Powell,  1  Leach,  C.  C.  77 ;  2  East,  P.  C.  976. 


214  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

stating  its  substance,  or  by  describing  it  as  an  instrument 
which  cannot  be  set  forth  by  reason  of  its  loss,  destruction,  or 
detention,  as  the  case  may  be.^ 

The  instrument  which  the  defendant  is  charged  with  forg- 
ing, etc.,  is  sometimes  described  as  the  instrument,  and  some- 
times as  purporting  to  be  the  instrument,  the  counterfeiting  of 
which  is  prohibited  by  the  statute  on  which  the  indictment 
is  framed ;  and  the  latter  mode  of  describing  it  has  been  held 
to  be  equally  good  as  the  former.  And  it  has  been  said,  that 
in  strictness  of  language,  there  may  be  more  propriety  in  so 
laying  it,  considering  that  the  purpose  of  the  indictment  is  to 
disaffirm  the  reality  of  the  instrument.^  Where  the  prisoner 
was  indicted  for  forging  and  knowingly  uttering  a  bill  of  ex- 
change, described  in  the  indictment  to  be  "  a  certain  bill  of 
exchange,  requiring  certain  persons,  by  the  name  and  descrip- 
tion of  Messieurs  Down,  etc.,  twenty  days  after  date,  to  pay 
to  the  order  of  R.  Thompson,  the  sum  of  315/.,  value  received," 
and  signed  by  Henry  Hutchinson  for  T.  G.,  and  H.  Hutch- 
inson, etc. ;  and  the  indictment  then  proceeded  to  set  out  the 
bill ;  on  proof  that  the  signature  "  Henry  Hutchinson  "  was  a 
forgery,  it  was  objected,  that  the  indictment  averring  it  to 
have  been  signed  by  him,  and  not  merely  that  it  purported 
to  have  been  signed  by  him,  which  was  a  substantial  alle- 
gation, was  disproved ;  and  the  case  being  referred  to  the 
judges,  they  held  the  objection  to  be  a  good  one.^  Where 
the  defendants  were  indicted  and  convicted  of  publishing,  as 
a  true  will,  a  certain  false,  forged,  and  counterfeited  paper 
writings  pnrporlinff  to  be  the  last  will  of  Sir  A.  C,  etc.,  the 
tenor  of  which  was  set  out,  it  was  objected  that  it  should 
have  been  laid  that  they  forged  a  certain  will,  and  not  a  paper 
writing  purporting',  etc.,  the  words  of  the  statute  being,  "shall 


^Commonwealth  v.  Houghton,  8  Mass.  107;  The  State  v.  Bonney,  34 
Maine,  223 ;  The  People  v.  liadgeley,  IG  Wendell,  53  ;  Hooper  v.  The  State, 
8  Humphreys,  93 ;  The  State  r.  Tarker,  1  Daniel  Chipmau,  298 ;  The  State 
V.  VcAts,  4  Halsted,  2G, 

«  2  East,  P.  C.  980;   1  Gahlu'tt,  Crini.  Law,  3  71. 

'  Hex  V.  Carter,  2  Kast,  F.  C.  985. 


CHAP.  XXV.]     FORGEKY  AND  COUNTERFEITING.  215 

forge  a  will  ;  "  but,  after  a  variety  of  precedents  were  pro- 
duced, the  judges  held  it  to  be  good  either  way.^ 

It  is  to  be  observed,  that  by  the  words  "purporting  to  be" 
is  to  be  understood  the  apparent,  and  not  the  legal  import  of 
the  instrument ;  whereas  the  "  tenor  "  of  an  instrument  means 
the  exact  copy  of  it.     And  accordingly,  where  the  instrument 
was  laid  in  some  counts  of  the  indictment  to  be  a  paper  writ- 
ing purporting  to  be  a  bank-note,  it  was  held,  that  as  it  did 
not  purport,  on  the  face  of  it,  to  be  a  bank-note,  not  having 
•    "been  signed,  the  conviction  could  not  be  supported ;  though 
it  was  in  evidence  in  this  case,  that  the  bank  frequently  paid 
bank-notes  which  are  filled  by  their  officers,  and  entered  by 
them,  though  they  happen  not  to  be  signed ;  but  the  case  was 
decided  upon  the  principle,  that  though  there  need  not  be  an 
exact  resemblance  to  the  thing  supposed  to  be  forged,  yet  the 
forged  instrument  must  at  least  have  the  principal  constituent 
parts  of  that  which  it  is  intended  to  represent ;  which  was 
wanting  in  this  case.^     And  where  the  bill  was  directed  to 
John  Ring,  and  the  acceptance  was  by  John  King,  the  indict- 
ment having  stated  that  the  bill  purported  to  be  directed  to 
John  King  by  the  name  of  John  Ring,  and  that  the  prisoner 
forged  the  acceptance  in  the  name  of  John  King,  the  judg- 
ment was  arrested,  because  the  bill  did  not,  in  fact,  purport 
to  be  drawn  on  or  directed  to  John  King,  as  laid  in  the  indict- 
ment ;  for  the  name  and  description  of  one  person  or  thing 
could  not  purport  to  be  another.^     And  so  where  a  check  or 
order  for  payment  of  money  was  in  fact  directed  to  Messrs. 
Ransom,  Moreland,  and  Hammersley,  but  in  the  indictment 
it  was  described  as  a  paper  writing,  etc.,  purporting  to  be 
directed  to  George   Lord   Kinnaird,   W.   Moreland,  and   T. 
Hammersley,  of,  etc.,  bankers  and  partners  by  the  name  and 


^  Rex  V.  Birch  and  Martin,  1  Leach,  C.  C.  (4th  London  ed.),  791 ;  2  East, 
P.  C.  980;  2  Blackstone,  Rep.  790. 

^  Rex  V.  Jones,  Douglass,  300;  1  Leach,  C.  C.  (4th  London  ed.),  204;  2 
East,  P.  C.  883,  952. 

'  Re.x  V.  Reading,  1  Leach,  C.  C.  (4th  London  ed.),  590;  2  East,  P.  C. 
952. 


216  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

description  of  Messrs.  Ransom,  Moreland,  and  Hammersley, 
upon  a  conference  of  tlie  judges,  the  judgment  was  arrested, 
upon  the  principle  above  laid  down,  that  the  purport  of  an 
instrument  meant  the  substance  of  it,  as  it  appeared  on  the 
face  of  the  instrument  to  every  eye  which  read  it ;  and  that 
this  check  or  order  could  not  purport  to  be  directed  to  Lord 
Kinnaird,  as  his  name  did  not  appear  on  the  face  of  it;  the 
blunder  having  arisen  from  the  circumstance  that  Lord  Kin- 
naird and  Messrs.  Moreland  and  Hammersley  had  carried 
on  the  business  of  bankers  under  the  firm  of  Messrs.  Ransom, 
Moreland,  and  Hammersley.^ 

But  it  is  not  always  sufficient  to  set  out  the  instrument 
according  to  its  tenor.  As  where  the  indictment  was  framed 
upon  43  Geo.  3,  ch.  139,  for  the  forgery  of  a  Prussian  treasury 
note,  and  the  instrument  was  set  out  on  the  record,  and  stated 
in  the  several  counts  to  be  "  a  promissory  note  for  the  pay- 
ment of  money,"  "  an  undertaking  for  the  payment  of  money," 
and  "  an  order  for  the  payment  of  money,"  and  the  prisoner 
being  convicted,  his  counsel  moved  in  arrest  of  judgment,  on 
the  ground  that  the  false  instrument  was  here  set  out  only  in 
a  foreign  language,  and  not  translated  or  explained  by  other 
averments  on  the  record ;  and  that  the  object  of  setting  out 
the  instrument  in  cases  of  libel  and  forgery  was,  that  the 
court  may  judge  whether  it  be  what  it  is  alleged  to  be,  and 
whether  it  falls  within  the  statute  on  which  the  prosecution 
is  founded ;  and  eight  of  the  ten  judges  who  met  to  con- 
sider the  case  were  of  opinion,  that  the  objection  was  good; 
and  judgment  was  accordingly  arrested.^  And  where  the 
instrument  alleged  to  be  forged  was  described  in  the  indict- 
ment as  "  a  certain  paper  instrument  ])artly  printed  and  partly 
written,"  though  the  instrument  was  set  forth  in  the  very 
words  and  figures  of  it ;  yet  the  judges,  upon  a  case  reserved, 


1  Rex  V.  Cilclirist,  2  Loaoli,  C  C.  (Ith  London  cd.),  057;  2  East,  P.  C. 
982.  And  see  Rex  v.  Edsall,  2  East,  V.  C.  984  ;  Rex  v.  Reeves,  2  Leach, 
C.  C.  (4tli  London  ed.),  808;  Hex  c.  Riirli,  1  Leach,  C.  C.  (Itli  London 
cd.),  70 ;  2  East,  V.  C.  980  ;  2  IJlackstone,  Rep.  790. 

*  Rex  V.  Goldstein,  Russell  iSc  Ryan,  C.  C.  4  73. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITING.  217 

held  the  indictment  to  be  bad,  as  it  did  not  state  what  the 
instrument  was,  in  respect  of  which  the  forgery  was  alleged 
to  have  been  committed,  nor  how  the  party  signing  it  had 
authority  to  sign  it.^  And  where  the  tenor  of  the  receipt,  as 
set  out  in  the  indictment,  was,  "  1825,  rec*^.  H.  H.,"  and  no 
averment  or  innuendo  to  explain  what  was  meant  by  these 
initials,  the  indictment  was  held  to  be  insufficient.^ 

Though  it  is  in  general  sufficient  to  charge  that  the  defend- 
ant forged  such  an  instrument,  naming  it,  or  describing  it  as 
purporting  to  be  such  an  instrument  as  is  within  the  words 
and  meaning  of  the  statute,  etc.,  or  setting  forth  the  tenor  of 
it,  yet  if  the  instrument  does  not  purport  on  the  face  of  it,  and 
without  reference  to  some  other  subject-matter,  to  be  the 
thing  prohibited  to  be  forged,  then  such  other  subject-matter 
must  be  referred  to  by  the  indictment,  and  connected  with  the 
forgery  by  proper  averments.^  Thus,  where  the  indictment 
charged  the  prisoner  with  forging  a  receipt  to  an  assignment 
of  a  certain  sum  in  a  navy  bill,  and  the  tenor  of  the  receipt 
merely  consisted  of  the  signature  of  the  party,  it  was  held  to 
be  defective,  on  the  ground  that  the  mere  signing  of  such 
name,  unless  connected  with  the  practice  of  the  navy  office, 
did  not  purport  on  the  face  of  it  to  be  a  receipt,  and  that  it 
ought  to  have  been  averred,  that  such  navy  bill,  etc.,  together 
with  such  signature,  did  purport  to  be,  and  was,  a  receipt, 
etc.,  and  that  the  prisoner  feloniously  forged  the  same  ;  and 
that  it  was  not  sufficient,  as  here,  to  allege,  generally,  that  the 
prisoner  forged  a  receipt,  which  was  a  conclusion  of  law ;  but 
facts  must  be  stated  to  show  the  court  that  such  conclusion 
was  true.^  But  the  words,  "  Settled,  Sam.  Hughes,"  wi-itten 
at  the  foot  of  a  bill  of  parcels,  were  held  of  themselves  to  im- 


^  Rex  V.  Wilcox,  Russell  &  Ryan,  C.  C.  50. 

-  Rex  r.  Barton,  1  Moody,  C.  C.  141.  See  Regina  v.  Inder,  1  Denison,  C. 
C.  325 ;  2  Cai-rington  &  Kirwan,  635. 

'  1  Gabbett,  Crim.  Law,  374  ;  2  East,  P.  C.  977. 

^  Rex  V.  Hunter,  2  Leach,  C.  C.  (4th  London  ed.),  624;  2  East,  P.  C. 
977. 

19 


218  FORGEKY  AND  COUNTERFEITING.     [CHAP.  XXV. 

port  a  receipt  or  acquittance,  and  that  no  averment  was  nec- 
essary ;  that  the  word  "  settled  "  meant  a  receipt  or  acquit- 
tance.^ And  where,  on  an  indictment  for  forging  a  receipt, 
it  appeared  that  the  receipt  was  written  at  the  foot  of  an 
account,  and  the  indictment  stated  the  receipt  thus :  "  18th 
March,  1773,  received  the  contents  above  by  me,  Stephen 
Withers ; "  without  setting  out  the  account  at  the  foot  of 
which  it  was  written,  it  was  held  sufficient.^ 

Another  general  rule  touching  the  manner  in  which  the 
offence  is  to  be  laid  in  the  indictment  is,  that  if  any  part  of  a 
true  instrument  be  altered,  the  indictment  may  lay  it  to  be  a 
forgery  of  the  whole  instrument ;  although  it  is  more  usual, 
and  indeed  advisable,  to  charge  forgeries  of  this  sort  by  stat- 
ing the  particular  alteration,  at  least  in  one  set  of  counts. 
The  defendant  was  found  guilty  of  uttering  a  certain  bill  of 
exchange  set  forth  in  the  indictment,  knowing  it  to  be  forged; 
and  it  appearing  upon  the  trial  that  the  bill  was  drawn  for 
XIO  only,  and  that  it  had  been  altered  by  changing  the  XIO 
into  £50  in  the  part  of  the  bill  where  the  sum  is  expressed  in 
figures,  as  also  in  the  part  where  it  is  expressed  in  letters,  and, 
so  altered,  had  been  passed  by  the  prisoner  to  T.  P.,  the  judg- 
ment was  respited,  the  prisoner's  counsel  having  objected, 
that  this  being  a  forgery,  by  altering  the  sum  in  a  genuine 
bill,  it  should  have  been  so  stated  in  the  indictment,  the  7 
Geo.  2,  ch.  22,  having  made  it  a  distinct  offence  to  alter,  by 
these  words  :  "  If  any  person  shall  falsely  make,  alter,  forge, 
or  counterfeit,  or  utter,  etc.,  any  false,  altered,  etc.,  bill  of  ex- 
change, etc."  At  a  conference  of  the  judges,  they  all  held  the 
conviotion  right,  upon  the  principle,  that  every  alteration  of  a 
true  instrument,  in  a  material  part,  to  the  prejudice  of  another, 
is  a  forgery  of  the  whole  instrument,  being  included  within 

»  Kox  V.  Martin,  1  INIoody,  C.  C.  483  ;  7  Carrington  &  Payne,  549 ;  over- 
ruling Jtcx  r.  Tlionipson,  2  Leacli,  C.  C.  (4th  London  cd.),  910.  And  see 
Kox  I'.  Houseman,  H  Carrington  &  Payne,  180;  llegina  v.  Vauglian,  8  Car- 
rington &  Payne,  180;  llegina  v.  lioardman,  2  Lloody  &  llobinson,  147; 
llegina  v.  Rogers,  9  Carrington  &  Payne,  41. 

-  Ilex  r.  Tcstick,  2  East,  P.  C.  925. 


CHAP.  XXV.]  FORaERY   AND    COUNTERFEITING.  219 

the  terms  of  the  definition  of  forgery.^  But  where  the  forgery 
is  of  something  which  is  a  mere  addition  or  collateral  to  the 
instrument,  and  does  not  alter  it,  as  when  the  indorsement  or 
acceptance  of  a  genuine  bill  of  exchange  is  forged,  then  such 
forgery  must  be  specially  alleged,  and  must  be  proved  as  laid ; 
whereas,  if  the  signature  of  the  drawer,  which  is  a  part  of  the 
bill  itself,  be  forged,  it  may  be  laid  as  a  forgery  of  the  entire 
bill.2 

It  is  usual  to  charge  that  the  party  "  falsely "  forged  and 
counterfeited,  etc.  But  it  is  said  to  be  enough  to  allege  only 
that  he  "  forged,"  or  "  counterfeited,"  without  adding  "  falsely," 
which  is  sufficiently  implied  in  either  of  those  terms ;  but 
more  particularly  in  the  Verb  "  to  forge,"  which  is  always 
taken  in  an  evil  sense,  in  the  law.^  Where  an  exception  was 
taken  to  the  indictment  as  being  repugnant,  for  stating  that 
the  pavty  false  1 1/  counterfeited  a  false  writing,  the  indictment 
was  held  good.'^ 

The  intent  to  defraud,  which  is  essential  to  constitute  this 
crime,  must  be  stated  in  the  indictment,  and  pointed  at  the 
particular  person  or  persons  against  whom  it  is  meditated.^ 
But  it  will  be  sufficient  to  describe  the  party  intended  to  be 

1  Rex  V.  Teague,  Russell  &  Ryan,  C.  C.  33  ;  2  East,  P.  C.  979  ;  The  State 
V.  Weaver,  13  Iredell,  491. 

«  1  Gabbett,  Crim.  Law,  3  75. 

'  2  East,  P.  C.  985  ;  1  Starkle,  Crlm.  PI.  (London  ed.  1828);  1  Gabbett, 
Crim.  Law,  375, 

*  Rex  I'.  Goate,  1  Lord  Raymond,  737. 

'  In  Massachusetts,  the  Rev.  Sts.  eh.  127,  §  14,  enact,  that  "In  any  case, 
where  an  intent  to  defraud  is  required  to  constitute  the  offence  of  forgery  or 
any  other  offence  that  may  be  prosecuted,  it  shall  be  sufficient  to  allege,  in 
the  indictment,  an  intent  to  defraud,  without  naming  therein  the  particular 
person  or  body  corporate  intended  to  be  defrauded ;  and  on  the  trial  of  such 
indictment,  it  shall  be  sufficient,  and  shall  not  be  deemed  a  variance,  if  there 
appear  to  be  an  intent  to  defraud  the  United  States,  or  any  State,  county, 
city,  town,  or  parish,  or  any  body  corporate,  or  any  public  officer,  in  his  offi- 
cial capacity,  or  any  copartnership  or  members  thereof,  or  any  particular 
person."  But  if  a  special  intent  to  defraud  is  alleged,  the  allegation  is  a  mate- 
rial one,  and  must  be  established  by  proof.  Commonwealth  v.  Harley,  7 
Metcalf,  506,  509  ;  Commonwealth  v.  Kellogg,  7  Gushing,  473,  476. 


220  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

defrauded,  with  reasonable  certainty.  And,  accordingly, 
where  it  was  moved  in  arrest  of  judgment,  that  the  indict- 
ment charged  the  forged  order  for  the  payment  of  money  to 
be  directed  to  Messrs.  Drummond  and  Company,  by  the 
name  of  Mr.  Drummond,  Charing  Cross,  whereas  the  names 
of  the  respective  partners  ought  to  have  been  set  forth  ;  at  a 
conference  of  the  judges,  they  all  held  the  indictment  good. 
They  were  of  opinion,  that  the  words  were  not  so  senseless 
and  unintelligible  as  not  to  import  a  certain  description  of 
persons  ;  that  they  must  understand  the  words  Messrs.  Drum- 
mond and  Company  as  everybody  else  did,  namely,  as  mean- 
ing the  partners  in  the  partnership  in  the  banking-house,  and 
it  was  not  necessary  to  state  by  name  who  the  partners  Avere  ; 
which  would  be  of  dangerous  consequence,  as  some  of  them 
might  not  be  known ;  that  if  the  indictment  had  only  stated, 
according  to  the  fact,  that  the  bill  or  order  was  directed  to 
Mr.  Drummond,  Charing  Cross,  it  would  have  been  sufficient; 
and  that,  as  the  indictment  was  framed,  the  only  question 
was,  whether  Drummond  and  Company  was  meant  by  the 
prisoner;  which  fact  was  established  by  the  verdict.^ 

But  though  it  is  necessary  to  describe,  with  sufficient  cer- 
tainty, the  persons  who  are  meant  to  be  defrauded,  the  indict- 
ment need  not  state  the  manner  by  which  the  fraud  is  to  be 
effected.  Thus  one  of  the  objections  in  Powell's  case  was, 
that  the  manner  in  which  the  forged  receipt  of  stock  was  to 
operate  in  prejudice  of  Mr.  Barrow,  was  not  shown  in  the 
indictment;  that  for  this  purpose  it  should  have  been  averred 
that  T.  Barrow,  whose  name  appeared  to  the  forged  receipt, 
meant  Taylor  Barrow,  with  intent  to  defraud  whom  the  for- 
gery was  laid  in  one  of  the  counts;  —  that  T.  B.  was  the  pro- 
prietor of  so  mucli  stock  ;  —  that  the  prisoner  personated  iiiin  in 
the  hale  and  transfer,  etc.,  and  transferred  it  to  such  a  person 
in  his  iiarne,  etc.  And  it  was  also  objected,  that  it  was  not 
sudicient  merely  to  state  that  the  forgery  was  committed  to 
defraud  T.  B.  generally.     But  the  judges  held  it  to  be  suffi- 

'  Hex  V.  Lovcll,  1  Lcacli,  C.  C.  (Itli  Loudon  ud.),  218;  2  East,  1\  C.  990. 


CHAP.  XXV.]  FORGERY   AND    COUNTERFEITING.  221 

cient  that  the  offence  was  described  in  the  words  of  the  act ; 
and  that  whether  it  were  or  were  not  meant  to  defraud  Tay- 
lor Barrow,  was  matter  of  evidence  for  the  jury,  in  support  of 
that  count.^  It  is  stated  in  East's  Pleas  of  the  Crown,  as 
another  ground  for  this  judgment,  that  there  was  a  second 
count,  wherein  the  forgery  was  laid  to  be  with  intent  to 
defraud  one  Sykes,  to  whom  the  stock  had  been  sold;  and 
therefore,  if  there  was  no  such  person  as  Taylor  Barrow,  or  if 
he  had  no  stock,  yet  as  the  receipt  had  in  form  the  constituent 
parts  of  a  receipt  for  the  transfer  of  East  India  stock,  that  was 
sufficient.  And  where  a  similar  objection  was  made,  namely, 
that  it  was  not  stated  that  the  bill  of  exchange  was  uttered 
or  tendered  to  the  persons  whom  it  was  laid  the  prisoner 
meant  to  defraud ;  and  therefore,  that  it  did  not  appear  to 
the  court,  on  the  face  of  the  indictment,  that  the  transaction 
was  such  as  those  persons  could  be  defrauded  by  it,  which 
always  was  the  case  when  the  name  of  a  drawer,  acceptor,  or 
indorser  was  forged,  all  the  judges,  upon  a  conference,  except 
Buller,  J.,  who  started  the  objection,  held,  that  the  indictment 
was  good  in  this  respect ;  as  it  was  sufficient  to  pursue  the 
words  of  the  act  which  constitutes  the  offence ;  and  that  it 
was  matter  of  evidence,  whether  the  prisoner  intended  to  de- 
fraud the  persons  named,  by  tendering  the  bill  in  payment  to 
them,  or  how  otherwise.^ 

When  the  indictment  is  founded  upon  a  statute,  it  must, 
in  general,  according  to  the  rule  of  pleading  which  is  appli- 
cable to  all  offences,  set  forth  the  charge  in  the  very  words  of 
the  statute  describing  the  offence  ;  equivalent  words  not  being 
sufficient.^  But  in  a  very  recent  English  case,  it  has  been 
held,  that  if  the  instrument  be  set  out  in  hac  verba,  a  misde- 
scription of  it  in  the  indictment  will  be  immaterial,  at  least  if 
any  of  the  terms  used  to  describe  it  be  applicable.  In  this 
case,  Parke,  B.,  said,  "  The  question  may  be  very  different  if 
the  indictment  sets  out  the  instrument,  from  what  it  would 

'  Rex  V.  Powell,  1  Leach,  C.  C.  (4th  London  ed.),  77 ;  2  East,  P.  C.  989. 
*  Ptex  V.  Elsworth,  2  East,  P.  C.  986,  989. 
»  1  Gabbett,  Grim.  Law,  376. 

19* 


222  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

be  if  it  merely  described  it  in  the  terms  of  the  statute.  In  the 
former  case,  the  matter  which  it  is  contended  is  descriptive 
may  be  mere  surplusage,  for  when  the  instrument  is  set  out  on 
the  record,  the  court  are  enabled  to  determine  its  character,  and 
so  a  description  is  needless. ^  Where  the  prisoner  was  charged 
with  uttering  and  publishing  as  true,  a  certain  false,  forged,  and 
counterfeited  bond  and  writing  obligatory ;  where  it  was  ob- 
jected, that  as  the  statute,  in  enumerating  the  several  instru- 
ments, the  forgery  of  which  it  prohibits,  mentions  both  bond 
and  writing  obligatory,  the  indictment  ought  to  have  described 
the  offence  with  more  precision,  either  as  a  forgery  of  the  one 
or  the  other  ;  and  that  in  this  case,  the  instrument  was  a  writ- 
ing obligatory,  and  not  a  bond,  as  it  had  neither  a  defeasance 
nor  penalty  annexed  to  it ;  and  that  although  a  bond  was  a 
writing  obligatory,  yet  that  the  converse  was  not  true.  But, 
the  judgment  being  respited,  it  was  decided,  that  the  instru- 


^  Regina  v.  Williams,  2  Denison,  C.  C.  61  ;  1  Temple  &  Mew,  C.  C.  382; 
4  Cox,  C.  C.  25G  ;  2  Eng.  Law  and  Eq.  Rep.  533,  (1850).  In  this  case  the 
indictment  charged  the  defendant  with  having  forged  "  a  certain  warrant, 
order,  and  request,  in  the  words  and  figures  following,"  etc.  It  was  objected 
that  the  paper,  being  only  a  request,  did  not  support  the  indictment,  which 
described  it  as  a  warrant,  order,  and  request.  But  it  was  held,  that  there 
was  no  variance,  as  the  document  being  set  out  in  full  in  the  indictment,  the 
description  of  its  legal  character  became  immaterial.  Parke,  B.,  suggested 
that  the  correct  course  would  have  been,  to  have  alleged  the  uttering  of  one 
warrant,  one  order,  and  one  request.  "  The  principle  of  this  decision  seems 
to  be,"  says  the  Reporter,  "  that  where  an  instrument  is  described  in  an 
indictment  by  several  designations,  and  then  set  out  according  to  its  tenor, 
either  with  or  Avithout  a  videlicet,  the  court  will  treat  as  surplusage  such  of 
the  designations  as  seem  to  be  misdescrlptiong,  and  treat  as  material  only 
such  designations  as  the  tenor  of  the  indictment  shows  to  be  really  applicable. 
And  where  the  indictment  is  so  drawn  as  to  enable  the  court  to  treat  as 
material  only  the  tenor  of  the  indictment  itself,  all  the  descriptive  averments 
may  be  treated  as  surplusage.  The  principal  case  seems  reconcilable  with 
lleguia  V.  Newton,  2  Moody,  C.  C.  59,  but  to  overrule  Regina  v.  Williams,  2 
Carrington  and  Kirwan,  51.  See  Bristow  v.  Wright,  Douglass,  66  ;  1  Smith's 
Leading  Cases  (Am.  (rd.  1852),  629."  In  licgina  r.  Charretie,  3  Cox,  C.  C. 
503,  (lS-19,)  ])<i,vison,  miiicus  curie,  nicntiuned  that  Cresswell,  J.,  in  a 
subsequent  case,  iiad  declined  to  act  ujiun  the  authority  of  Regina  r.  Wil- 
liams, 2  Carrington  &  Kirwan,  51. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITING.  223 

merit  was  well  described,  and  the  conviction  proper.^  And  in 
Els  worth's  case,  the  principal  objection  was,  that  the  indict- 
ment charged  that  the  prisoner  d\d  feloniously  alter,  and  cause 
to  be  altered,  a  certain  bill  of  exchange,  by  falsely  making, 
forging,  and  adding  a  cipher  to  the  letter  and  figure  <£8  in 
the  said  bill,  and  also  by  falsely  making,  forging,  and  adding 
the  letter  y  to  the  word  eight.  But  the  indictment  was  held 
good,  though  the  words  of  the  statute  were,  "  if  any  person 
shall  make,  forge,  or  counterfeit,"  and  the  word  alter  or  add 
is  not  used  in  this  statute;  the  judges  being  of  opinion,  that 
there  was  no  difference  in  substance,  or  in  the  nature  of  the 
charge,  whether  the  indictment  was  for  feloniously  altering 
by  falsely  making  and  forging,  or  feloniously  making  and 
forging  by  falsely  altering,  etc. ;  for  the  false  and  fraudulent 
alteration  of  a  writing  may  be  treated  as  a  forgery  of  the 
whole  instrument.2 

In  all  of  the  United  States  this  offence  is  punishable  by 
statute.  But  it  will  readily  be  perceived,  that  many  things 
which  may  be  the  subjects  of  forgery,  do  not  come  within  the 
statutes.  Beyond  the  range  of  these  statutes,  the  subject  of 
forgery  is  taken  up  by  the  common  law,  whereby  the  deceit- 
ful, false,  and  fraudulent  fabrication  and  use  of  all  sorts  of 
writings,  is  denounced  and  punished  as  criminal.  The  de- 
scriptions or  denominations  of  the  subjects  of  forgery  in  the 
statutes,  are  therefore  material,  principally  in  relation  to  the 
degree  of  punishment  and  the  phraseology  of  the  indictment.^ 

1.  Forgery  at  common  law. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 


^  Rex  V.  Dunnett,  2  East,  T.  C.  985,  986. 

'  Rex  I'.  Elsworth,  2  East,  P.  C.  986,  989. 

'  Commonwealth  v.  Ayer,  3  Gushing,  150  ;  3  Greenleaf  on  Ev.  §  102.  See 
Regina  v.  Boult,  2  Carrington  &  Kirwan,604;  The  State  t'.  Ames,  2  Green- 
leaf,  (Bennett's  ed.),  336  ;  Regina  v.  Hartshorn,  6  Cox,  C.  C.  403  ;  Regina 
V.  Sharmau,  6  Cox,  C.  C.  312 ;  24  Eng.  Law  and  Eq.  Rep.  553. 


224  FORGERY  AND    COUNTERFEITING.  [CHAP.  XXV. 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  falsely  and  fraudulently  did  make,  forge,  and  coun- 
terfeit a  certain  will,  purporting  to  be  the  last  will  of  one 
J.  N.,  which  will  is  of  the  tenor  following,  that  is  to  say,  etc. ; 
with  intent  thereby  then  and  there  to  cheat  and  defraud  one 
E.  F.,  against  the  peace,  etc. 

2.  For  uttering  and  publishing-  as  true  a  forged  promissory 
note.  —  Rev.  Sts.  of  Mass.  ch.  127,  §  2.i 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, had  in  his  custody  and  possession  a  certain  false,  forged, 
and  counterfeit  promissory  note,  the  said  C  D.  then  and  there 
knowing  the  same  to  be  false,  forged,  and  counterfeit,  which 
false,  forged,  and  counterfeit  promissory  note  is  of  the  tenor 
following,  that  is  to  say,  etc. ;  and  that  the  said  C.  D.  did  then 
and  there  'feloniously  utter  and  publish  the  same  as  true,  with 
intent  thereby  then  and  there  to  injure  and  defraud  one  J.  N. ; 
the  said  C.  D.  then  and  there  knowing  the  said  promissory 
note  to  be  false,  forged,  and  counterfeit;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

3.  For  forging  a  promissori/  note.  —  Rev.  Sts.  of  Mass. 
ch.  127,  §  1.2 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 


*  Tills  precedent  may  be  used  and  adapted  to  all  the  cases  of  uttering  and 
puliiisliiiij^  forged  instruments  ■which  may  be  prosecuted  upon  the  first  section 
of  the  Htatute. 

'  In  an  indictment  for  forging  a  promissory  note,  the  indorsement  need  not 
be  set  out,  tliough  it  be  forged.  Jt  is  no  part  of  the  note.  Commonwealth 
V.  Adams,  7  Mct<;alf,  50;  Commonwealth  v.  Ward,  2  Mass.  397.  From  the 
aliovc  precedent  an  indictment  may  n^adily  lie  framed  for  forging  any  of  the 
instruments  mentioned  in  the  lirbt  section  of  the  statute. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITING.  225 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  aforesaid, 

feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
false,  forged,  and  counterfeit  promissory  note,  which  false, 
forged,  and  counterfeit  promissory  note  is  of  the  tenor  follow- 
ing, that  is  to  say,  etc.,  with  intent  thereby  then  and  there  to 
injure  and  defraud  one  J.  N. ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

4.  For  counterfeiting  a  hank-hill.  —  Rev.  Sts.  of  Mass. 
ch.  127,  §  4. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

B.  in  the  county  of  S.,  feloniously  did  falsely  make,  forge,  and 
counterfeit  a  certain  false,  forged,  and  counterfeit  bank-bill, 
payable  to  the  bearer  thereof,  purporting  to  be  issued  by  the 
President,  Directors,  and  Company  of  the  Merchants  Bank, 
then  being  an  incorporated  banking  company  established  in 
this  State,  to  wit,  at  B.  in  the  county  of  S.,  and  Common- 
wealth aforesaid,  which  said  false,  forged,  and  counterfeit 
bank-bill  is  of  the  tenor  following,  that  is  to  say,  etc.,  with 
intent  thereby  then  and  there  to  injure  and  defraud  one  J.  N. ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


5.  For  having  in  possession  at  the  same  time,  ten  or  more  coun- 
terfeit hank-bills,  ivitli  intent  to  utter  and  pass  the  same  as 
true.  —  Rev.  Sts.  of  Mass.  ch.  127,  §  5.i 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  on  the  first  day  of  June,  at  B.  in  the  county  of  S.,  had.  in 


*  The  mare  possession  of  counterfeit  coin,  or  bank-bills,  with  intent  to  utter 
as  true,  is  not  an  indictable  offence  at  common  law.  But  an  act  done,  coupled 
with  the  possession  and  the  in),ent  to  utter,  rendered  the  otrcnce  indictable. 


226  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

his  possession  at  the  same  time,^  ten  similar  false,  forged,  and 
counterfeit  bank-bills,  payable  to  the  bearer  thereof,  purport- 
ing to  be  issued  by  the  President,  Directors,  and  Company  of 
the  Suffolk  Bank,  then  being  an  incorporated  banking  com- 
pany established  in  this  State,  to  wit,  at  B.  in  the  county  of 
S.,  and  Commonwealth  aforesaid,  one  of  which  said  false, 
forged,  and  counterfeit  bank-bills  is  of  the  following  tenor, 
that  is  to  say  ;2  here  insert  a  true  copy  of  all  and  each  of  the 
ten  hills ;  after  inserting  a  true  copy  of  the  first,  go  on  to  say, 
one  other  of  ivhich  said  false,  forged,  and  counterfeit  bank-bills 
is  of  the  folloiving  tenor,  and  so  on  ivith  the  whole  of  them  ; 
the  said  C.  D.  then  and  there  knowing  each  and  every  one  of 
said  bank-bills,  to  be  false,  forged,  and  counterfeit  as  afore- 
said, with  intent  then  and  there  to  utter  and  pass  the  same 
as  true,  and  thereby  then  and  there  to  injure  and  defraud  one 
J.  N. ;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


6.  For  passing  a  counterfeit  hank-bill.  —  Rev.  Sts.  of  Mass. 

ch.  127,  §  6. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  in  the  county  of  S.,  did  utter  and  pass  to  one  E.  F. 
a  certain  false,  forged,  and  counterfeit  bank-bill,  payable  to 
the  bearer  thereof,  purporting  to  be  issued  by  the  President, 

Dugdale  v.  Regina,  Pearce,  C.  C.  C4;  1  Ellis  &  Blackburn,  435;  16  Eng. 
Law  and  Eq.  Rep.  380 ;  Regina  v.  Fulton,  Jebb,  C.  C.  48 ;  Rex  v.  Heath, 
Russoll  &  Ryan,  C.  C.  184 ;  Rex  v.  Fuller,  Russell  &  Russell,  C.  C.  308. 

*  It  is  necessary  to  aver  that  the  defendant  had  tlie  bills  in  his  possession 
at  the  same  time.  An  averment  that  he  had  them  in  his  possession  on  the 
fi.'ime  day,  is  not  suflicicnt.  Edwards  v.  The  Conmionwealth,  19  Pickering, 
124.     And  see  Rex  v.  'Willianis,  2  Leach,  C.  C.  (4th  London  ed.),  529. 

^  If  tlie  defendant  has  retained  possession  of  the  bills,  allege  as  follows:  — 
"  lOaili  and  every  one  of  which  said  false,  forged,  .and  counterfeit  bank-bills 
were  then  and  there  retained  and  ke])t  by  the  said  C.  D.,  so  that  the 
jurors  aforesaid  cannot  .set  forth  the  tenor  thereof."     Ante,  p.  213,  214. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITING.  227 

Directors,  and  Company  of  the  Suffolk  Bank,  then  being  an 
incorporated  banlcing  company  established  in  this  State,  to 
wit,  at  B.  aforesaid,  in  the  county  aforesaid,  and  Common- 
wealth aforesaid,  which  said  false,  forged,  and  counterfeit 
bank-bill  is  of  the  tenor  following,  that  is  to  say,  etc.,  with 
intent  thereby  then  and  there  to  injure  and  defraud  the  said 
E.  F.,  the  said  C.  D.  then  and  there  knowing  the  said  bank- 
bill  to  be  false,  forged,  and  counterfeit ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

7.  For  having-  in  possession  a  counterfeit  hank-hill,,  with  intent 
to  pass  the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  8.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 


'  An  indictment  on  St.  1804,  ch.  120,  §  4,  which  alleged  that  the  defendant 
had  in  his  possession  a  counterfeit  bank-bill,  "  with  intent  to  pass  the  same," 
was  held  sufficient,  without  the  averment  of  an  intent  to  pass  the  same  "  aa 
true."  Hopkins  v.  The  Commonwealth,  3  Metealf,  460.  In  this  case,  Chief 
Justice  Shaw  said,  "  This  indictment  was  founded  on  St.  1804,  ch.  120,  §  4, 
"which  enacts,  that  if  any  person  shall  have  in  his  possession  within  this  State, 
any  counterfeit  bank-bill,  etc.,  for  the  purpose  of  rendering  the  same  current 
as  true,  or  with  intent  to  pass  the  same,  knowing  the  same  to  be  counterfeit, 
etc.  The  provision  in  the  statute  is  made  in  the  alternative  ;  it  is  the  guilty 
possession  of  the  counterfeit  note,  with  the  guilty  purpose  of  rendering  the 
same  current  as  true,  or  with  intent  to  pass  the  same.  The  latter  clause  does 
not  add  the  words,  to  pass  the  same  '  as  true.'  The  argument  for  the  pris- 
oner, however,  assumes  that  this  must  have  been  intended  by  the  legislature, 
and  therefore  must  be  so  charged  in  the  indictment.  But  we  cannot  perceive 
that  such  was  the  plain  intent  of  the  legislature,  when  the  words  do  not  ex- 
press it.  One  object  of  the  statute  may  have  been  to  prevent  one  dealer  in 
forged  from  passing  counterfeit  notes  to  another,  as  false  notes,  to  enable  and 
assist  him  in  defrauding  others.  This  is  more  probable  from  the  use  of  the 
alternative  words.  The  intent  to  render  the  same  current '  as  true,'  is  pro- 
vided for  by  the  former  clause.  If  the  other  clause  was  intended  only  to 
prohibit  the  intent  to  pass  the  same  '  as  true,'  it  would  add  nothing  to  the 
former  provision  ;  it  would  only  describe  the  same  offence  in  other  words. 

"  But  the  omission  of  the  words  '  as  true '  strengthens  the  conclusion,  that 
the  legislature  intended  further  to  prohibit  the  passing  of  counterfeit  bank- 


228  FORGERY  AND  COUNTERFEITING.    [CHAP.  XXV. 

at  B.  in  the  county  of  S.,  had  in  his  possession  a  certain 
false,  forged,  and  counterfeit  bill,  in  the  similitude  of  the  bills 
payable  to  the  bearer  thereof,  and  issued  by  the  President, 
Directors,  and  Company  of  the  Boylston  Bank,  then  being  a 
banking  company  established  in  this  State,  to  wit,  at  B.  in 
the  county  of  S.,  and  Commonwealth  aforesaid,  which  said 
false,  forged,  and  counterfeit  bank-bill  is  of  the  tenor  follow- 
ing, that  is  to  say,  etc. ;  with  intent  then  and  there  to  utter 
and  pass  the  same,  the  said  C.  D.  then  and  there  knowing 
the  said  bank-bill  to  be  false,  forged,  and  counterfeit ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

8.  For  making'  a  tool  to  he  used  in  counterfeiting-  bank-tiotes. 
Rev.  Sts.  of  IVIass.  ch.  127,  §  9. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  in  the  county  of  S.,  did  engrave  and  make  a  certain 
plate,  the  same  being  then  and  there  an  instrument  and  im- 
plement adapted  and  designed  for  the  forging  and  making  of 
false  and   counterfeit   notes,  in  the  similitude  of  the  notes 

bills  '  as  money,'  or  to  be  used  or  passed  as  money,  by  any  pei-son,  at  any 
rate  of  discount,  or  otherwise,  wliether,  as  between  him  and  the  immediate 
receiver,  they  were  passed  as  true  or  not.  There  is  a  case  on  another  clause 
of  the  same  statute  which  leads  to  the  same  construction.  Commonwealth  v. 
Cone,  2  Mass.  132.  But  then,  it  is  said,  this  would  give  a  greater  effect  to 
the  word  "  pass,"  than  that  intended  by  the  legislature ;  and  would  bring 
within  the  statute  any  person  who  innocently,  and  for  any  purpose,  should 
hand  over  a  counterfeit  bill  to  another.  But  we  think  this  would  not  be  a 
just  consequence.  The  word  '  pass,'  as  used  in  this  statute,  and  generally, 
as  applied  to  bank-notes,  is  technical,  and  means  to  deliver  them  as  money, 
or  as  a  known  and  conventional  substitute  for  money.  The  word  must  be 
construed  to  have  the  same  meaning  when  used  in  the  statute  as  in  the  indict- 
ment ;  and  therefore,  to  sustain  such  an  indictment,  it  must  be  proved,  that 
the  party  who  is  chargeil,  passed  the  counterfeit  bill  to  another,  for  some  valu- 
able (consideration  or  ollicrwisc,  as  for  money,  or  to  be  used  as  money,  with 
tli<' ;/uilty  i)ni'po.sc  of  defrauding  tlic  coinnuinity."  And  see  llegina  v.  Ion, 
'J  Denisoii,  C.  C.  4  75  ;  G  Cox,  C.  C.  1  ;  11  I'^ng.  Law  and  Eq.  Rep.  55G. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITING.  229 

issued  by  the  President,  Directors,  and  Company  of  the  Suf- 
folk Bank,  then  being  a  banking  company  legally  established 
in  this  State,  to  wit,  at  B.  in  the  county  of  S.,  and  Common- 
wealth aforesaid;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


9.  For  having  in  possession  a  tool  to  he  vsed  in  counterfeiting" 

bank-notes,  loith  intent  to  use  the  same.  —  Rev.  Sts.  of 
Mass.  ch.  127,  §  9. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord > 

at  C.  in  the  county  of  M.,  feloniously  had  in  his  possession  a 
certain  engraved  plate,  the  same  being  then  and  there  an 
instrument  adapted  and  designed  for  the  forging  and  making 
false  and  counterfeit  notes  in  the  similitude  of  the  notes 
issued  by  the  President,  Directors,  and  Company  of  the  Mer- 
chants Bank,  then  being  a  banking  company  established  in 
this  State,  to  wit,  at  B.  in  the  county  of  S.,  and  Common- 
wealth aforesaid,  with  intent  then  and  there  to  use  the  same 
in  forging  and  making  false  and  counterfeit  ncra?s  in  the  simil- 
itude of  the  notes  issued  by  the  said  President,  Directors,  and 
Company  of  the  said  Merchants  Bank ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

10.  For  counterfeiting  current  coin.  —  Eev.  Sts.  of  Mass.  ch. 

127,  §  15. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  yeoman,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  did  counterfeit  a  certain  piece  of  silver  coin,  current 
within  this  State,  to  wit,  the  Commonwealth  aforesaid,  by 
the  laws  and  usages  thereof,  called  a  dollar ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

20 


« 


230  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 


11.  For  having  ten  counterfeit  pieces  of  coin,  with  intent  to 

pass  the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  15.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  David  R. 
Fuller,  late  of,  etc.,  on  the  fifteenth  day  of  April  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-four,  at 
Lowell,  in  the  county  of  Middlesex,  had  in  his  custody  and 
possession,  at  the  same  time,  ten  similar  pieces  of  false  and 
counterfeit  coin,  of  the  likeness  and  similitude  of  the  silver 
coin  current  within  this  Commonwealth,  by  the  laws  and 
usages  thereof,  called  Mexican  dollars,  with  intent  then  and 
there  the  said  pieces  of  false  and  counterfeit  coin  to  utter  and 
pass  as  true,  the  said  David  R.  Fuller  then  and  there  well 
knowing  the  same  to  be  false  and  counterfeit ;  against  the 
peace  of  the  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

12.  For  having  less  than  ten  counterfeit  pieces  of  coin,  ivith 

iyitent  to  pass  the  same  as  true. ; —  Rev.  Sts.  of  Mass.  ch. 

isr?,  §  16.2 

The  jurors,   etc.,   upon   their    oath    present,   that   Josiah 

^  The  courts  of  Massachusetts  have  jurisdiction  of  the  oflTence  of  having 
false  money,  counterfeited  in  the  similitude  of  any  gold  or  silver  coin  current 
by  law  or  usage  within  the  State,  knowing  the  same  to  be  false  and  counter- 
feit. Commonwealth  v.  Fuller,  8  Metcalf,  213.  The  substance  of  the  crime 
is  the  possession  of  counterfeit  coin,  with  the  guilty  knowledge  and  intent 
indicated,  and  this  is  a  substantive  odence,  whether  the  numbpr  of  pieces  be 
over  or  under  ten.  Therefore,  upon  an  indictment  on  this  statute,  charging 
the  defendant  with  having  more  than  ten  pieces,  proof  of  his  having  less  than 
ten  will  warrant  a  conviction,  and  the  convict  may  be  sentenced  under  the 
sixteenth  section  of  the  statute.  Commonwealth  v.  Griffin,  21  Pickering,  523. 
See  Rex  v.  Kllins,  Russell  &  Ryan,  C.  C.  187. 

'  In  Couimon wealth  v.  Stearns,  10  IMetcalf,  250,  this  indictment  was  held 
sufficient,  without  giving  any  further  (lesc7'iption  of  the  dollar.  And  it  was 
lield  to  he  sujiportfd  liy  proof  that  tin;  defendant  had  in  his  possession  a  coin, 
counterfeited  in  the  siniilituile  of  a  i\lexican  dollar,  with  such  Intent  and 
knowledge. 


CHAP.  XXV.]     FORGERY  AND  COUNTERFEITINQ.  231 

Stearns,  late  of,  etc.,  on  the  twenty-fifth  day  of  June  in  the 
year  of  our  Lord ,  at  Charlestown,  in  the  county  of  Mid- 
dlesex, had  in  his  custody  and  possession  a  certain  piece  of 
false  and  counterfeit  coin,  counterfeited  in  the  likeness  and 
similitude  of  the  good  and  legal  silver  coin,  current  within 
said  Commonwealth,  by  the  laws  and  usages  thereof,  called 
a  dollar,  with  intent  then  and  there  to  pass  the  same  as  true, 
the  said  Stearns  then  and  there  well  knowing  the  same  to  be 
false  and  counterfeit;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

13.  For  uttering  and  passing'  counterfeit  coin.  —  Rev.  Sts.  of 

Mass.  ch.  127,  §  16. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

B.  in  the  county  of  S.,  a  certain  piece  of  counterfeit  coin, 
counterfeited  in  the  likeness  and  similitude  of  the  good  and 
legal  silver  coin  current  within  this  State,  to  wit,  the  Com- 
monwealth aforesaid,  by  the  laws  and  usages  thereof,  called  a 
dollar,  did  utter  and  pass  as  true  to  one  E.  F.,  the  said  C.  D. 
then  and  there  ^  well  knowing  the  same  to  be  false  and  coun- 
terfeit; against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and 
provided. 

14.  For  having  in  possession  tools  for  coining,  with  intent  to 

use  the  same.  —  Rev.  Sts.  of  Mass.  ch.  127,  §  18.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  Ezekiel  S. 

^  An  indictment  which  charged  the  defendant  with  uttering  a  counterfeit 
half  crown  to  M.  A.  W.,  "  knowing  the  same  to  be  false  and  counterfeit," 
omitting  the  words  "then  and  there,"  was  held  sufScient.  Regina  v.  Page,  2 
Moody,  C.  C.  219. 

^  Under  this  section  a  person  is  punishable  for  having  in  his  possession  an 
instrument  adapted  and  designed  to  make  one  side  only  of  a  counterfeit 
coin.     Commonwealth  v.  Kent,  G  Metcalf,  221. 


232  FORGERY  AND  COUNTERFEITING.     [CHAP.  XXV. 

Kent,  late  of,  etc.,  on  the  first  day  of  October  in  the  year  of 

our  Lord ,  at  B.  in  the  county  of  S.,  did  knowingly  have 

in  his  possession  a  certain  mould,  pattern,  die,  puncheon,  tool, 
and  instrument,  adapted  and  designed  for  coining  and  mak- 
ing one  side  of  a  counterfeit  coin  in  the  similitude  of  one  side 
or  half  part  of  a  certain  silver  coin,  called  a  half  dollar,  to  wit, 
that  side  or  half  part  thereof  which  represents  a  spread  eagle, 
and  has  the  words  "  United  States  of  America,"  "  half  dol- 
lar;"  said  coin,  called  a  half  dollar,  being  current  by  law  and 
usage  in  this  State  and  Commonwealth  aforesaid,  with  intent 
then  and  there  to  employ  the  same  mould,  pattern,  die,  pun- 
cheon, tool,  and  instrument,  and  cause  and  permit  the  same 
to  be  used  and  employed  in  coining  and  making  such  false 
and  counterfeit  coin  as  aforesaid ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


CHAPTER    XXVI. 

FORNICATION. 

Indictment  for  fornication.     Rev.  Sts.  of  Mass.  ch.  130,  §  5. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county 

aforesaid,  did  commit  the  crime  of  fornication  with  one  J.  N., 
by  then  and  there  having  carnal  knowledge  of  the  body  of  the 
said  J.  N.,  the  said  C.  D.  being  then  and  there  a  single  and 
unmarried  man,  and  the  said  J.  N.  being  then  and  there  a , 
single  and  unmarried  woman,^  and  the  said  C.  D.  and  J.  N. 
not  being  then  and  there  lawfully  married  to  each  other ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

'  See  The  State  v.  Gooch,  7  Blackford,  468. 

20* 


CHAPTER    XXVII. 

FRAUDULENT  CONVEYANCE. 

It  has  been  deemed  advisable  to  reprint  the  following  case, 
which  is  the  only  one  founded  on  St.  18  Eliz.  ch.  5,  §  3,  that 
has  been  reported,  for  the  reason,  that  the  Reports  of  Cox  are 
not   generally   accessible   to   the   profession   in   the    United 

States. 

Eegina  v.  Smith  and  another.^ 
13  Eliz.  ch.  5,  §  3  —  Indictment  —  Fraudulent  Conveyance. 

For  any  offence  ivithin  13  Eliz.  ch.  5,  §  3,  the  offender  may  he 
proceeded  against  by  indictment. 

In  such  an  indictment  it  is  not  necessary  to  set  out  the  specific 
facts  which  constitute  the  fraud. 

The  defendants  were  charged  upon  the  following  indict- 
ment under  the  third  section  of  the  13  Eliz.  ch.  5,^  for  making 
a  fraudulent  conveyance. 

Surrey,  )  The  jurors  for  our  Lady  the  Queen  upon  their  oath 
to  wit.  )       present,  that  heretofore  and  before  the  committing 


^  6  Cox,  C.  C.  31. 

*  It  has  been  thought  right  to  set  out  this  indictment  at  some  length,  as  it 
is  the  only  form  of  the  kind  to  be  found  in  the  books.  It  was  drawn,  after 
much  consideration,  by  the  Deputy  Clerk  of  Assize  on  the  Home  Circuit, 
and  is  believed  to  I)C  the  only  instance  in  which  an  attempt  has  been  made 
to  render  this  section  tlu-  basis  of  a  criminal  prosecution,  a  fact  somewhat 
remarkable,  considering  the  extensive  nature  of  its  operation.  The  facts  of 
the  case  arc  sufliciently  shown  by  the  indictment  itself. 


CHAP.  XXVII.]      FRAUDULENT  CONVEYANCE.  235 

of  the  offence  hereinafter  next  mentioned,  to  wit,  on  the  first 
day  of  January  in  the  year  of  our  Lord  1850,  and  on  divers 
other  days  and  times  heretofore,  William  Smith  hereinafter 
mentioned  had  committed  and  caused  to  be  committed  near 
to  and  in  the  neighborhood  of  certain,  to  wit,  twenty-two 
messuages,  of  and  belonging  to  one  T.  C.  M.,  to  wit,  at  West 
Hill  Grove,  in  the  parish  of  Battersea,  in  the  county  of  Sur- 
rey, divers  nuisances  and  injurious  acts,  matters,  and  things, 
to  the  great  damage  and  injury  of  the  said  T.  C.  M.,  to  wit, 
to  the  amount  of  ,£300  and  upwards.  Wherefore  the  said 
T.  C.  M.  heretofore,  to  wit,  on  the  twenty-seventh  day  of 
January  in  the  year  of  our  Lord  1851,  did  commence  a  cer- 
tain action  on  the  case  against  the  said  W.  S.,  to  wit,  in  the 
court  of  our  Lady  the  Queen,  before  the  Queen  herself, 
whereby  to  recover  from  the  said  W.  S.  the  lawful  damages 
sustained  by  the  said  T.  C.  M.  for  and  in  respect  of  the  said 
nuisances  and  injurious  acts,  matters,  and  things  aforesaid. 

That  thereupon  such  proceedings  were  had  and  taken  in 
the  said  action,  that  afterwards,  to  wit,  at  the  assizes  holden 
at  Kingston-on-Thames,  in  and  for  the  county  of  Surrey 
aforesaid,  the  said  action  came  on  to  be  tried,  and  then  and 
there,  before  the  Right  Honorable  John  Lord  Campbell,  and 
the  Right  Honorable  Sir  James  Parke,  Knight,  then  and  there 
being  her  Majesty's  justices  assigned  to  take  the  assizes  in 
and  for  the  said  county,  was  by  a  certain  jury  of  the  country 
in  due  form  of  law  tried,  upon  which  said  trial  the  said  jury 
did  find  and  say  upon  their  oaths,  that  the  said  W.  S.  was 
guilty  of  the  grievances,  nuisances,  and  injurious  acts,  mat- 
ters, and  things  aforesaid;  and  assessed  the  damages  of  the 
said  T.  C.  M.  on  occasion  thereof,  over  and  above  his  costs 
and  charges  by  him  about  his  said  suit  in  that  behalf  ex- 
pended, to  £300,  and  assessed  those  costs  and  charges  at 
forty  shillings. 

That  during  the  pendency  of  the  said  suit,  to  wit,  from 
the  commencement  of  the  said  suit  until  the  twenty-eighth 
day  of  March  in  the  year  of  our  Lord  1851,  the  said  W.  S. 
was  seized  in  his  demesne  as  of  fee  of  and  in  certain  lands, 


236  FRAUDULENT   CONVEYANCE.  [CHAP.  XXVII. 

hereditaments,  and  premises  within  the  said  county,  to  wit,  at 
the  parish  of  Battersea,  in  the  county  of  Surrey.* 

That  the  said  W.  S.  late  of  the  parish  of  Wandsworth, 
in  the  county  aforesaid,  laborer,  and  S.  Everett,  late  of  the 
same  place,  laborer,  devising  and  wickedly  intending  and  con- 
triving to  injure,  prejudice,  and  aggrieve  the  said  T.  C.  M., 
and  to  defraud  and  deprive  him  of  any  damages  and  costs  to 
be  recovered  in  the  said  action  whilst  the  same  was  so  pend- 
ing as  aforesaid,  and  immediately  before  the  same  came  on 
for  trial  as  aforesaid,  and  in  anticipation  of  the  said  verdict, 
to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  last 
aforesaid,  in  the  county  aforesaid,  did  devise,  contrive,  and 
prepare,  and  caused  to  be  prepared,  a  certain  feigned,  covin- 
ous, and  fraudulent  alienation  and  conveyance,  whereby  the 
said  W.  S.  expressed  and  declared  to  appoint  and  grant  to 
the  said  S.  E.,  the  lands,  tenements,  and  hereditaments  afore- 
said, to  hold  to  him  the  said  S.  E.  and  his  heirs  forever. 

That  the  said  W.  S.  and  S.  E.,  wickedly  and  fraudulently 
devising,  contriving,  and  intending  as  aforesaid,  on  the  day 
and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  unlawfully,  knowingly,  wilfully,  fraudulently,  co- 
vinously,  and  injuriously  did  execute  and  become  parties  to 
the  said  alienation  and  conveyance,  and  then  and  there  wit- 
tingly and  willingly  did  put  in  ure,  avow,  maintain,  justify, 
and  defend  the  same  alienation  and  conveyance,  as  true, 
simple,  and  done  and  made  bond  fide  and  upon  good  consid- 
eration, and  as  a  conveyance  and  alienation  whereby  the  said 
W.  S.  had  really  and  bond  fide  appointed  and  granted  to  the 
said  S.  E.  the  lands,  tenements,  and  hereditaments  aforesaid, 
to  hold  to  iiim  the  said  S.  E.  and  his  heirs  forever.  Whereas, 
in  truth  and  in  fact,  the  said  alienation  and  conveyance  was 
not  nor  is  it  bond  fide.  And  whereas  the  trutli  was  and  is, 
that  the  same  was  so  devised,  contrived,  and  executed  as 
aforesaid,  of  malice,  fraud,  collusion,  and  guile,  and  to  the 
end,  purpose,  and  intent  to  dtOay  and  hinder  tiie  said  T.  C.  M. 
of  and  in  his  said  just  and  lawful  action  and  the  said  dam- 
ages by  reason  of  the  prcmih^es;  to  the  great  let  and  hinder- 


CHAP.  XXVII.]      FRAUDULENT  CONVEYANCE.  237 

ance  of  the  due  course  and  execution  of  law  and  justice,  to 
the  great  injury  of  the  said  T.  C.  M.,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the 
peace  of  our  said  Lady  the  Queen,  her  crown,  and  dignity. 

Second  Count,  as  in  the  first  count  to  the  asterisk,  and  con- 
tinued thus :  That  the  said  W.  S.  and  S.  E.,  devising  and 
wickedly  intending  and  contriving  to  injure,  prejudice,  and 
aggrieve  the  said  T.  C  M.,  and  to  defraud  and  deprive  him 
of  any  damages  and  costs  to  be  recovered  in  the  said  action 
whilst  the  same  was  so  pending  as  aforesaid,  and  immedi- 
ately before  the  same  came  on  for  trial  as  aforesaid,  and  in 
anticipation  of  the  said  verdict,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  of  Wandsworth,  in  the  county 
aforesaid,  did  devise,  contrive,  and  prepare,  and  cause  to  be 
prepared,  a  fraudulent  alienation  and  conveyance  of  the  lands, 
tenements,  and  hereditaments  aforesaid.  That  the  said  W.  S. 
and  S.  E.  wickedly  and  fraudulently  devising,  contriving,  and 
intending  as  aforesaid,  on  the  day  and  year  aforesaid,  at  the 
parish  last  aforesaid,  in  the  county  aforesaid,  unlawfully, 
knowingly,  wilfully,  fraudulently,  covinously,  and  injuriously 
did  execute  and  become  parties  to  the  said  alienation  and 
conveyance,  and  then  and  there  wittingly  and  willingly  did 
put  in  ure,  avow,  maintain,  justify,  and  defend  the  same  alien- 
ation and  conveyance,  as  true,  simple,  and  done  and  made 
bond  fide  and  upon  good  consideration,  and  as  a  conveyance 
and  alienation,  whereby  the  said  W.  S.  had  really  and  bond 
fide  aliened  and  conveyed  to  the  said  S.  E.  the  lands,  tene- 
ments, and  hereditaments  aforesaid,  to  hold  to  him  the  said 
S.  E.  and  his  heirs  forever ;  whereas,  in  truth,  etc.,  as  in  first 
count. 

Third  Count,  as  in  the  first  count,  to  the  asterisk:  That  dur- 
ing the  pendency  of  the  said  action,  and  in  anticipation  of  the 
said  verdict,  to  wit,  on  the  day  and  year  last  aforesaid,  a  cer- 
tain feigned,  covinous,  and  fraudulent  alienation  and  convey- 
ance had  been  devised,  contrived,  prepared,  and  executed  by 
and  between  the  said  W.  S.  and  the  said  S.  E.,  whereby  the 
said  W.  S.  was  expressed  and  declared  to  appoint  and  grant 


238  FRAUDULENT    CONVEYANCE.  [CHAP.  XXVII. 

and  make  over  to  the  said  S.  E.,  the  lands,  tenements,  and 
hereditaments  aforesaid,  to  the  said  S.  E.  and  his  heirs  forever. 
That  the  said  W.  S.  and  S.  E.  wickedly  devising,  contriving, 
and  intending  to  injure,  prejudice,  and  aggrieve  him,  and  to 
deprive  him  of  the  said  damages  and  costs  in  the  said  action 
so  found  as  aforesaid,  afterwards,  to  wit,  on  the  twenty-sixth 
day  of  April  in  the  year  of  our  Lord  1851,  at  the  parish  of 
Wandsworth,  in  the  county  aforesaid,  unlawfully,  wittingly, 
and  willingly  did  put  in  ure,  avow,  maintain,  justify,  and  de- 
fend the  same  alienation  and  conveyance,  as  true,  simple, 
and  done  and  made  bond  fide,  and  upon  good  consideration, 
and  as  a  conveyance  and  alienation,  whereby  the  said  W.  S. 
had  really  and  bond  fide  appointed,  granted,  and  made  over  to 
the  said  S.  E.,  the  lands,  tenements,  and  hereditaments  afore- 
said, to  hold-  to  him  the  said  S.  E.  and  his  heirs  forever ; 
whereas,  in  truth  and  in  fact,  etc. 

Fourth  Count,  as  in  the  first  count  to  the  asterisk:  That  during 
the  pending  of  the  said  action  and  in  anticipation  of  the  said 
verdict,  to  wit,  on  the  day  and  year  last  aforesaid,  a  certain 
feigned,  covinous,  and  fraudulent  alienation  and  conveyance 
had  been  devised,  contrived,  prepared,  and  executed  by  and 
between  the  said  W.  S.  and  the  said  S.  E.,  of  the  lands,  tene- 
ments, and  hereditaments  aforesaid,  to  the  said  S.  E.  and  his 
heirs  forever.  That  the  said  W.  S.  and  S.  E.,  wickedly  de- 
vising, contriving,  and  intending  to  injure,  prejudice,  and 
aggrieve  the  said  T.  C.  M.,  and  defraud  and  deprive  him  of 
the  said  damages  and  costs  in  the  said  action  so  found  as 
aforesaid,  afterwards,  to  wit,  on  the  twenty-sixth  day  of  April 
in  the  year  of  our  Lord  1851,  at  the  parish  of  Wandsworth 
aforesaid,  in  the  county  aforesaid,  unlawfully,  wittingly,  and 
willingly  did  put  in  ure,  avow,  maintain,  justify,  and  defend 
the  same  alienation  and  conveyance,  as  true,  simple,  and  done 
and  in;ide  bond  fide,  and  upon  good  consideration,  and  as  a 
conveyanc(^  and  alienation  wher('l)y  the  said  W.  S.  had  really 
and  bond  fide  granted,  bargained,  ali(MU'd,  released,  conveyed, 
and  made  over  to  ihe  said  S.  ]*".,  the  lands,  tenements,  and 
hereditaments  aforesaid,  to  liold  to  him  the  said  S.  E.  and  his 
iieirs  forever,  etc. 


CHAP.  XXVII.]      FRAUDULENT  CONVEYANCE.  239 

Fifth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  farther  present,  that  the  said  W.  S.  and  the  said 
S.  Ey  and  divers  evil-disposed  persons  wickedly  intending  to 
injure  the  said  T.  C.  M.,  on  the  twenty-eighth  day  of  March 
in  the  year  of  our  Lord  1851,  with  force  and  arms,  at  the  par- 
ish of  Wandsworth,  in  the  county  aforesaid,  did  amongst 
themselves  conspire,  combine,  confederate,  and  agree  together, 
fraudulently,  maliciously,  and  covinously  to  delay,  hinder,  and 
defraud  the  said  T.  C.  M.  of  all  such  damages  which  he 
might  thereafter  recover  against  the  said  W.  S.  in  a  certain 
action  which  was  then  pending  in  the  court  of  our  said  Lady 
the  Queen,  before  the  Queen  herself,  wherein  the  said  T.  C. 
M.  was  plaintiff,  and  the  said  W.  S.  was  defendant,  to  the 
evil  example  of  all  others  in  the  like  case  offending,  against 
the  peace  of  our  said  Lady  the  Queen,  her  crown,  and  dignity. 

Sixth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  S.  and  the  said 
S.  E.,  and  divers  evil-disposed  persons  wickedly  intending  to 
injure  the  said  T.  C.  M.,  on  the  twenty-eighth  day  of  March 
in  the  year  of  our  Lord  1851,  with  force  and  arms,  at  the  par- 
ish of  Wandsworth,  in  the  county  aforesaid,  did  amongst 
themselves  conspire,  combine,  confederate,  and  agree  together, 
fraudulently,  maliciously,  and  covinously  to  delay,  hinder,  and 
defraud  the  creditors  of  the  said  W.  S.,  to  the  evil  example  of 
all  others  in  the  like  case  offending,  against  the  peace  of  our 
Lady  the  Queen,  her  crown  and  dignity. 

Seventh  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  S.  and  the 
said  S.  E.,  and  divers  evil-disposed  persons  wickedly  intend- 
ing to  injure  the  said  T.  C.  M.,  on  the  twenty-eighth  day  of 
March  in  the  year  of  our  Lord  1851,  with  force  and  arms,  at 
the  parish  of  Wandsworth,  in  the  county  aforesaid,  did 
amongst  themselves  conspire,  combine,  confederate,  and  agree 
together,  fraudulently,  maliciously,  and  covinously  to  cheat 
and  defraud  the  said  T.  C.  M.  of  the  fruits,  and  of  all  ben- 
efits and  advantages  of  any  execution  or  executions  which  he 
might  thereafter  lawfully  issue  or  cause  to  be  issued  against 


240  FRAUDULENT   CONVEYANCE.  [CHAP.  XXVII. 

the  lands  or  tenements  of  the  said  W.  S.,  to  the  evil  example 
of  all  others  in  the  like  case  offending,  against  the  peace  of 
our  Lady  the  Queen,  her  crown  and  dignity. 

Eighth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  W.  S.  and  the 
said  S,  E.,  and  divers  evil -disposed  persons,  wickedly  intend- 
ing to  injure  the  said  T.  C.  M.  on  the  twenty-eighth  day  of 
March  in  the  year  of  our  Lord  1851,  with  force  and  arms,  at 
the  parish  of  Wandsworth,  in  the  county  aforesaid,  did 
amongst  themselves  conspire,  combine,  confederate,  and  agree 
together,  fraudulently,  maliciously,  and  covinously  to  cheat, 
injure,  impoverish,  prejudice,  and  defraud  the  said  T.  C.  M., 
to  the  evil  example  of  all  others  in  the  like  case  offending, 
etc. 

Ninth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore  and  before  and 
at  the  time  of  the  commission  of  the  offence  hereinafter  next 
mentioned,  to  wit,  on  the  twenty-eighth  day  of  March  in  the 
year  of  our  Lord  1851,  a  certain  action  on  the  case  was  pend- 
ing between  the  said  W.  S.  and  the  said  T.  C.  M.,  to  wit,  in 
her  Majesty's  Court  of  Queen's  Bench,  at  Westminster, 
whereby  the  said  T.  C.  M.  sought  to  recover  from  the  said 
W.  S.,  damages  for  certain  nuisances  and  injurious  acts,  mat- 
ters, and  things  alleged  to  have  been  done  and  committed  to 
the  injury  of  the  said  T.  C.  M.  That  the  said  W.  S.  and  S. 
E.,  and  divers  evil-disposed  persons,  whilst  the  said  action 
was  so  pending  as  aforesaid,  to  wit,  on  the  day  and  year 
aforesaid,  at  the  parish  last  aforesaid,  in  the  county  aforesaid, 
unlawfully  and  wickedly  did  conspire,  combine,  confederate, 
and  agree  together,  by  divers  unlawful,  false,  fraudulent,  and 
indirect  ways,  means,  devices,  stratagems,  and  contrivances, 
to  impede,  hinder,  prevent,  and  delay  the  said  T.  C.  M.  in  the 
said  action,  and  in  the  prosecution  thereof,  and  in  the  recov- 
ery of  damages  for  the  nuisances  and  injurious  acts,  matters, 
and  things  aforesaid,  to  the  great  injury  of  the  said  T.  C.  M., 
against  the;  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  jxiace  of  om*  said  I^ady  the  Queen, 
lifT  crown  and  dignity. 


CHAP.  XXVII.]  FKAUDULENT   CWVEYANCE.  241 

Locke  (for  the  defence)   moved,  after  verdict,  in  arrest  of 
judgment,  on  the  ground  that  no  proceeding  by  indictment 
was  contemplated  by  the  statute.     The  third  section  was  in 
these  words :  "  That  all  and  every  the  parties  to  such  feigned, 
covinous,  or  fraudulent  feoffment,  gift,  grant,  alienation,  bar- 
gain, conveyance,  bonds,  suits,  judgments,  executions,  and 
other  things  before  expressed,  and  being  privy  and  knowing 
of  the  same  or  any  of  them,  which  at  any  time  after  the  tenth 
day  of  June  next  coming,  shall  wittingly  and  willingly  put 
in  ure,  avow,  maintain,  justify,  or  defend  the  same  or  any  of 
them,  as  true,  simple,  and  done,  had,  or  made  bond  fide,  and 
upon  good  consideration;   or  shall  alien  or  assign  any  the 
lands,  tenements,  goods,  leases,  or  other  things  before  men- 
tioned, to  him  or  them  conveyed  as  is  aforesaid,  or  any  part 
thereof,  shall  incur  the  penalty  or  forfeiture  of  one  year's  value 
of  the  said  lands,  tenements,  and  hereditaments,  leases,  rents, 
commons,  or  other  profits,  of  or  out  of  the  same,  and  the 
whole  value  of  the  said  goods  and  chattels,  and  also  of  so 
much  moneys  as  are  or  shall  be  contained  in  any  such  covin- 
ous and  feigned  bond ;  the  one  moiety  whereof  to  be  to  the 
Queen's   Majesty,  her   heirs  and  successors,  and   the   other 
moiety  to  the  party  or  parties  grieved  by  such  feigned  and 
fraudulent  feoflhient,  gift,  grant,  alienation,  bargain,  convey- 
ance, bonds,  suits,  judgments,  executions,  leases,  rents,  com- 
mons, profits,  charges,  and  other  things  aforesaid,  to  be  recov- 
ered in  any  of  the   Queen's  Courts  of  Record  by  action  of 
debt,  bill,  plaint,  or  information,  wherein  no  essoign,  protec- 
tion, or  wager  of  law  shall  be  admitted  to  the  defendant  or 
defendants,  and  also  being  thereof  lawfully  convicted,  shall 
sufier  imprisonment  for  one  half  year,  without  bail  or  main- 
prize."      The  oflence,  if  any,  of  which  the  defendants  have 
been  guilty,  is  entirely  created  by  this  statute,  and  the  section, 
after  stating  what  the  ofTence  is,  declares  that  for  committing 
it,  the  offender  shall  incur  a  penalty  or  forfeiture  of  one  year's 
value,  to  be  recovered  by  action.     There  is  no  mention  what- 
ever of  indictment,  but  there  is  a  reference  to  a  civil  proceeding. 
The  rule  with  respect  to  the  mode  of  proceeding  where  new 
offences  are  created  by  statute  is  laid  down  in  Russell  on 

21 


242  FRAUDULENT   CONVEYANCE.  [CHAP.  XXVII. 

Crimes,  p.  50,  in  the  following  terms :  "  Where  an  offence 
was  punishable  by  a  common  law  proceeding  before  the  pass- 
ing of  a  statute  which  prescribes  a  particular  remedy  by  a 
summary  proceeding,  then  either  method  may  be  pursued,  as 
the  particular  remedy  is  cumulative,  and  does  not  exclude  the 
common  law  punishment.  But  where  a  statute  creates  a  new 
offence  by  prohibiting  and  making  unlawful  what  was  lawful 
before,  and  appoints  a  particular  remedy  against  such  new 
offence,  by  a  particular  sanction  and  particular  method  of  pro- 
ceeding, such  method  must  be  pursued  and  no  other.  The 
mention  of  other  methods  of  proceeding  impliedly  excludes 
that  by  indictment,  unless  such  methods  are  given  by  a  sep- 
arate and  substantive  clause."  There  is  another  objection  to 
this  indictment,  that  it  only  states  generally  that  this  deed 
was  fraudulent,  not  stating  why  or  in  what  respect  it  was  so. 
In  Re  Peck,^  it  was  held,  that  a  count  charging  that  the  de- 
fendants unlawfully  conspired  to  defraud  divers  persons  who 
should  bargain  with  them  for  the  sale  of  merchandise,  of  great 
quantities  of  such  merchandise  without  paying  for  the  same, 
with  intent  to  obtain  to  themselves  money  and  other  profit, 
was  bad  for  not  showing  by  what  means  the  parties  were  to 
be  defrauded. 

James  (with  whom  was  TIaivkins  for  the  prosecution)  was 
not  called  upon. 

Maule,  J.  —  As  to  the  first  point,  that  the  section  of  the  act 
of  Parliament  does  not  speak  of  indictment,  I  think  it  clear 
that  that  proceeding  is  the  proper  one.  The  section  mentions 
the  offence,  and  then  with  reference  to  the  punishment,  de- 
clares that  the  "  offender  being  thereof  convicted,  shall  suffer 
imprisonment  for  one  half  year."  That  must  mean  "being 
convicted  thereof,"  before  some  competent  tribunal.  If  the 
statute  had  ))ointcd  out  some  other  means,  for  instance,  on 
convictio)!  Ijcforc  a  justice  of  tlie  peace  on  a  summary  hear- 
ing, it  would  i)robal>ly  havi;  restricted  proceedings  to  that  par- 
ticular (Mjursc.  It  is  Irue  that  tlie  statute  does  mention  a  civil 
action,  but   that  has  nothing  whatever  to  do  with  the  half 

•  [)  Adolphus  &  Ellis,  C8G. 


CHAP.  XXVII.]      FRAUDULENT  CONVEYANCE.  243 

year's  imprisonment,  but  merely  has  reference  to  the  recovery 
of  damages  by  action,  in  any  of  the  courts  at  Westminster. 
It  surely  could  never  be  contended  that  the  meaning  of  the 
statute  is,  that  when  such  a  court  has  given  judgment  for  the 
damages,  it  should  proceed  to  award  to  the  defendant  the 
punishment  of  imprisonment  for  half  a  year.  The  humanity 
of  our  law  has  established  a  clear  distinction  between  civil 
and  criminal  proceedings,  and  this  act  of  Parliament  cannot 
be  supposed  to  sanction  so  anomalous  a  course  as  that.  It  is 
obvious  that,  by  some  means  or  another,  imprisonment  is  to 
be  awarded  after  a  proper  conviction  before  a  recognized  tri- 
bunal. How  then  can  that  be  done,  otherwise  than  by  indict- 
ment ? 

Locke  submitted,  that,  at  all  events  it  was  intended  that 
no  criminal  proceeding  should  be  resorted  to,  until  after  the 
recovery  of  damages  in  a  civil  action,  the  words  "  and  also  " 
near  the  end  of  the  section,  seemed  to  point  to  such  a  con- 
struction. 

Maule,  J.  —  I  do  not  think  so ;  those  words  do  not  neces- 
sarily so  restrict  the  procedure,  and  there  seems  to  be  no 
reason  why  it  should  be  so  restricted.  Then  as  to  the  second 
point.  The  case  cited  is  one  where  persons  were  said  to 
have  conspired  to  do  a  thing  not  necessarily  unlawful  in 
itself,  such  as,  for  instance,  preventing  a  person  from  having 
execution  of  a  judgment.  There  is  nothing  unlawful  in  that. 
It  is  precisely  what  the  learned  counsel,  and  those  who  in- 
struct him,  are  doing  at  this  moment,  seeking  to  prevent  the 
operation  of  a  judgment  by  arresting  it.  In  the  present  case, 
the  very  words  of  the  statute  are  adopted.  What  is  charged 
therefore  is  necessarily  unlawful,  for  the  statute  has  made 
it  so. 

Judgment  for  the  Croivn. 


CHAPTER     XXVIII. 


HOMICIDE. 

It  is  usual  when  the  denomination  or  degree  of  the  homi- 
cide is  at  all  doubtful,  to  charge  the  party  in  the  indictment 
with  murder ;  because  as  the  law  presumes  the  fact  of  killing 
to  be  founded  in  malice/  until  the  contrary  appears,  and  as 
questions  of  homicide  are  frequently  of  a  doubtful  or  com- 
plicated nature,  it  is  therefore  proper  not  to  anticipate  the  effect 
of  the  circumstances  which  may  appear  to  alleviate  the  crime. 
No  material  injury  can  thereby  happen  to  the  party,  for  the 
verdict  and  judgment  will  still  be  adapted  to  the  nature  of 
the  offence,  according  as  it  appears  upon  the  evidence ;  and 
the  party  on  the  contrary  has  this  advantage,  that  though  the 
offence,  if  specially  jiresented,  would  be  one  short  of  felony, 
of  which  he  might  be  convicted,  an  acquittal  of  the  mur- 
der is  a  perpetual  bar  to  any  other  indictment  for  the  same 
death  .^ 

With  respect  to  the  formal  parts  of  the  indictment,  it  is 
absolutely  necessary  to  set  forth  particularly  the  manner  of 
the  death,  and  the  means  by  which  it  was  effected.  An  omis- 
sion in  this  respect  is  not  aided  by  a  general  conclusion  "  that 
the  defendant  murdered,"  etc.  But  in  the  celebrated  case  of 
Commonwealth  v.  Webster,  it  was  held,  that  a  count  charg- 
ing Ihat  the  defendant  counnittcd  the  crime,  "in   some  way 


'  Commonwealth  v.  York,  9  I\Iclcalf,  93.     But  sec  llic   able   dissenting 
opinion  of  Mr.  .Iiistioe  ^V'ildc. 

^  1  (ial)ljclt,  Crim.  J.aw,  5<>2;  1  Kast,  P.  C.  310;  2  Halo,  P.  C  158. 


I 


CHAP.  XXVIII.]  HOMICIDE.  245 

and  manner,  and  by  some  means,  instrmTients,  and  weapons, 
to  the  jurors  unknown,"  is  sufficient,  when  the  circumstances 
of  the  case  will  not  admit  of  greater  certainty  in  stating  the 
means  of  death.^     A  variance  is  in  some  cases  fatal.     Thus, 


^  5  Gushing,  295.  In  charging  the  jury  in  this  case,  Chief  Justice  Shaw 
said :  — "  This  indictment  contains  four  counts,  which  are  four  different 
modes  in  which  the  homicide  is  alleged  to  have  been  committed.  To  a  per- 
son unskilled  and  unpractised  in  legal  proceedings,  it  may  seem  strange  that 
several  modes  of  death  inconsistent  with  each  other,  should  be  stated  in  the 
same  document.  But  it  is  often  necessary ;  and  the  reason  for  it  when  ex- 
plained, will  be  obvious.  The  Indicanent  is  but  the  charge  or  accusation 
made  by  the  grand-jury,  with  as  much  certainty  and  precision  as  the  evi- 
dence before  them  will  warrant.  They  may  be  well  satisfied  that  the  homi- 
cide was  committed,  and  yet  the  evidence  before  them  may  leave  it  some- 
what doubtful  as  to  the  mode  of  death ;  but  in  order  to  meet  the  evidence  as 
it  may  finally  appear,  they  are  very  properly  allowed  to  set  oyt  the  mode  in 
different  counts ;  and  then  if  any  one  of  them  is  proved,  supposing  it  to  be 
also  legally  formal,  it  is  sufficient  to  support  the  indictment. 

"  Take  the  instance  of  a  murder  at  sea ;  a  man  is  struck  down,  lies  some 
time  on  the  deck  insensible,  and  in  that  condition  is  thrown  overboard.  The 
evidence  proves  the  cei'tainty  of  a  homicide  by  the  blow,  or  by  the  drowning, 
but  leaves  It  uncertain  by  which.  That  would  be  a  fit  case  for  several  counts, 
charging  a  death  by  a  blow,  and  a  death  by  drowning,  and  perhaps  a  third 
alleging  a  death  by  the  joint  result  of  both  causes  combined.  It  may  per- 
haps be  supposed,  that,  in  the  long  and  melancholy  history  of  criminal  juris- 
prudence, a  precedent  can  be  found  for  every  possible  mode  in  which  a 
riolent  death  can  be  caused ;  and  it  is  safer  to  follow  precedents.  It  is  true 
that  these  pi'ecedents  are  numerous  and  various  ;  but  is  not  true,  that  amidst 
new  discoveries  in  art  and  science,  and  the  powers  of  nature,  new  modes  of 
causing  death  may  not  continually  occur.  The  powers  of  ether  and  chloro- 
form are  of  recent  discovery.  Suppose  a  person  should  be  forcibly  or  clan- 
destinely held,  and  those  agents  applied  to  his  mouth  till  insensibility  and 
death  ensue,  though  no  such  instance  ever  occurred  before,  the  guilty 
agent  could  not  escape. 

"  Of  course,  I  do  not  mean  to  intimate  that  these  supposed  agencies  were 
used  in  the  present  case,  but  allude  to  them  simply  by  way  of  illustration. 
But,  if  such  or  any  similar  new  modes  of  occasioning  death  may  have  been 
adopted,  they  are  clearly  within  the  law.  The  rules  and  principles  of  the 
common  law,  just  as  when  applied  to  steamboats  and  locomotives,  though  these 
have  come  into  existence  long  since  those  principles  were  established,  are 
broad  and  expansive  enough  to  embrace  all  new  cases  as  they  arise.  If 
therefore  a  homicide  is  committed  by  any  mode  of  death,  Avhich,  though 

21* 


246  HOMICIDE.  [chap.  XXVIII. 

if  a  person  be  indicted  for  one  species  of  killing,  as  by  poi- 
soning, he  cannot  be  convicted  by  evidence  of  a  totally  differ- 


practised  for  the  first  time,  falls  witliln  tliese  principles,  and  it  is  charged  in 
the  indictment  with  as  much  precision  and  certainty  as  the  circumstances  of 
the  case  will  allow,  it  comes  within  the  scope  of  the  law  and  is  punishable. 

"  The  principle  is  well  stated  in  East's  Pleas  of  the  Crown,  ch.  6,  §  13  :  — 
'  The  manner  of  procuring  the  death  of  another  with  malice  is,  generally 
speaking,  no  otherwise  material  than  as  the  degree  of  cruelty  or  delibera- 
tion, with  v.hich  it  is  accompanied,  may  in  conscience  enhance  the  guilt  of 
the  perpetrator ;  with  this  reservation  however,  that  malice  must  be  of  cor- 
poral damage  to  the  party;  and,  therefore,  working  upon  the  fancy  of 
another,  or  treating  him  harshly  or  unkindly,  by  which  he  dies  of  fear  or 
grief,  is  not  such  a  killing  as  the  law  takes  notice  of;  but  he  who  wilfully  and 
deliberately  does  any  act,  which  apparently  endangers  another's  life  and 
thereby  occasions  his  death,  shall,  unless  he  clearly  prove  the  contrary,  be 
adjudged  to  kill  him  of  malice  prepense.'  This,  the  author  proceeds  to  illus- 
trate by  a  number  of  remarkable  and  peculiar  leases. 

"  In  looking  at  this  indictment,  we  find  that  the  first  count,  after  the  usual 
preamble,  charges  an  assault  and  a  mortal  wound  by  stabbing  with  a  knife  ; 
the  second  by  a  blow  on  the  head  with  a  hammer ;  and  the  third,  by  striking, 
kicking,  beating,  and  throwing  on  the  ground.  The  fourth  and  last  count, 
•which  is  somewhat  new,  it  will  be  necessary  to  examine  more  particularly. 
[Here  the  chief  justice  read  the  fourth  count,  as  inserted  post,  page  271.] 
The  court  are  all  of  opinion,  after  some  consideration,  that  this  is  a  good 
count  in  the  indictment. 

"  From  the  necessity  of  the  case,  we  think  it  must  be  so,  because  cases  may 
be  imagined  where  the  death  is  proved,  and  even  where  remains  of  the  de- 
ceased are  discovered  and  identified,  and  yet  they  may  afford  no  certain  ev- 
idence of  the  form  in  which  the  death  was  occasioned ;  and  then  it  is  proper 
for  the  jury  to  say,  that  it  is  by  means  to  them  unknown. 

"  We  have  already  seen  that  a  death  occasioned  by  grief  or  terror,  cannot 
in  law  be  deemeil  murder.  Murder  must  be  committed  by  an  act  applied 
to  or  aifecting  the  person,  either  directly,  as  by  inflicting  a  wound  or  laying 
poison  ;  or  indirectly,  as  by  exposing  the  person  to  a  deadly  agency  or  influ- 
ence from  whicli  death  ensues.  Here  the  count  charges  an  assault  upon  the 
deceased,  (a  technical  term  well  understood  in  the  law,  implying  force  ap- 
plied to  or  directed  towards  the  person  of  anotlicr,)  in  some  way  and  man- 
ner, ami  by  sonu;  means,  instruments,  and  AVeapons,  to  the  jury  unknown ; 
and  that  the  defendant  did  thereby  wilfully  and  maliciously  deprive  him 
of  lif.'. 

"  Tiic  rules  of  law  recpiirc  the;  grand-jury  to  state  their  charge  with  as 
much  certainty  as  the  circumstances  of  the  case  will  i>ermit ;  and,  if  the  cir- 


CHAP.  XXVIII.]  HOMICIDE.  247 

ent  species  of  death,  as  by  shooting,  stoning,  or  strangling, 
but  it  is  an  immaterial  variance,  if,  where  the  death  is  occa- 
sioned by  any  weapon,  it  should  appear  by  the  evidence  that 
the  party  was  killed  by  one  different  from  that  stated  in  the 
indictment.  And  so  if  the  death  be  charged  by  one  sort  of 
poisoning,  and  it  turn  out  to  be  another ;  for  if  the  means  of 
death  proved,  agree  in  substance  with  that  charged,  it  is  in 
all  cases  sufficient.^  When  the  death  is  caused  by  any  ex- 
ternal violence,  coming  under  the  nature  of  striking  or  bruis- 
ing, it  should  expressly  appear  that  a  stroke  was  given.^  But 
it  cannot  of  course,  be  necessary  in  the  case  of  poisoning, 
starving,  or  the  like,  where  no  actual  violence  is  offered,  or 
assault  made.  It  appears  that  where  the  primary  cause  of 
the  death  is  truly  and  substantially  set  forth,  it  is  not  neces- 
sary to  state  the  intermediate  process  by  which  that  cause 
has  produced  the  fatal  effect.^ 

When  the  death  is  occasioned  by  any  instrument  held  in 
the  hand  of  the  party  killing  the  other,  it  is  usual  to  state  the 
hand  in  which  it  was  held,  whether  the  right  or  left  hand ;  but 
this  is  unnecessary.  The  value  of  the  instrument  is  also  gen- 
erally stated,  or  whether  it  be  of  no  value ;  but  this  state- 


cumstances  will  not  permit  a  fuller  and  more  precise  statement  of  the  mode 
in  ■which  the  death  is  occasioned,  this  count  conforms  to  the  rules  of  law. 

"  I  am  therefore  instructed  by  the  court  to  say,  that  if  you  are  satisfied 
upon  the  evidence,  that  the  defendant  is  guilty  of  the  crime  charged,  this 
form  of  indictment  is  sufficient  to  sustain  a  conviction." 

^  Rex  V.  Sharwin,  1  East,  P.  C.  341 ;  Eex  v.  Mackally,  9  Reports,  65,  67, 
a;  The  State  u.  Smith,  22  Maine,  360;  Rex  i'.  Waters,  7  Carrington  & 
Payne,  250 ;  Rex  v.  Grounsell,  7  Carrington  &  Payne,  788  ;  Rex  v.  Martin, 

5  Carrington  &  Payne,  128;  Rex  v.  Thompson,  1  Moody,  C.  C.  139;  1 
Lewin,  C.  C.  194  ;  Rex  v.  Kelly,  1  Moody,  C.  C.  113;  1  Lewin,  C.  C.  193; 
Rex  V.  Calkin,  5  Carrington  &  Payne,  121  ;  Rcgina  v.  Warman,  2  Carring- 
ton &  Kirwan,  195  ;  3  Greenleaf,  Ev.  §  140  ;  1  Gabbett,  Crim.  Law,  502. 
See  Regina  v.  O'Brien,  1  Denison,  C.  C.  9  ;  1  Cox,  C.  C.  126  ;  2  Carrington 

6  Kirwan,  115. 

-  The  State  v.  Owen,  1  Murphy,  452;  Larkin's  case,  1  Bulstrode,  124;  1 
Gabbett,  Crim.  Law,  503. 

'  Rex  V.  Tye,  Russell  &  Ryan,  C.  C.  345 ;  Regina  v.  Mclntyre,  2  Cox,  C. 
C.  379. 


248  HOMICIDE.  [CIIAP.  XXVIII. 

ment  also,  is  not  essential.^  The  part  of  the  body  in  which 
the  deceased  was  struck  or  wounded,  where  the  death  is 
caused  in  that  way,  should  always  be  particularly  shown  ; 
and  therefore  if  it  be  said  to  be  on  the  arm,  hand,  or  side, 
without  distinguishing  whether  it  be  right  or  left,  or  if  it  be 
only  said  to  be  about  the  breast,  it  will  be  insufficient.^  But 
where  there  is  a  sufficient  certainty  in  these  respects,  the  addi- 
tion of  further  uncertain  description  of  the  same  wound  will 
not  vitiate  it.^ 

The  dimensions  of  the  wound  should  be  stated.  But  this 
rule  does  not  ap]:»ly  where  the  death  is  caused  by  bruises. 
And  if  a  person  be  shot,  or  run  through  the  body,  it  seems 
sufficient  to  say,  that  the  defendant  gave  the  deceased  a  mor- 
tal wound,  penetrating  into  and  through  his  body  ;  specifying 
at  the  same  time  the  part  of  the  body  where  he  was  struck. 
If,  however,  upon  the  evidence,  it  should  appear  to  be  another 
kind  of  wound,  in  another  place,  it  will  be  sufficient  to  main- 
tain the  indictment.  The  reason  assigned  for  requiring  this 
minute  particularity  as  to  the  manner  and  place  of  the  wound 
or  hurt,  and  its  nature  as  above  mentioned,  is,  that  the  court 
may  see  that  the  wound  was  such  as  to  be  a  sufficient  cause 
for  the  death.'*  * 


^  See  2  Deacon,  Crim.  Law,  927;  1  East,  P.  C.  341 ;  1  Starkie,  Crim.  PI. 
(London  ed.  1828),  92;  2  Hale,  P.  C.  185;  1  Gabbctt,  Crim.  Law,  503; 
Ptex  V.  Dale,  1  IVIoody,  C.  C.  5  ;  Ward  v.  The  State,  7  Blackford,  101. 

»  2  ILile,  P.  C.  185,  186  ;  Long's  case,  5  Coke  Kep.  122,  a. 

'  1  East,  P.  C.  342;  1  Starkie,  Crim.  PI.  (London  ed.  1828),  92.  See 
Dias  r.  The  State,  7  Blackford,  20. 

*  1  (iabbett,  Crim.  Law,  504  ;  4  Coke  Rep.  40,  & ;  3  Chitty,  Crim.  Law, 
(Perkins'  ed.)  734  ;  2  Deacon,  Crim.  Law,  298;  1  Hast,  P.  C.  342  ;  2  Hale, 
P.  C.  185,180;  The  State  v.  Owen,  1  Murphy,  452,  454,  4C1,  4C4  ;  The 
State  V.  Crank,  2  Bailey,  06.  In  the  case  of  an  incised  wound  which  caused 
death,  upon  the  necessity  of  the  description,  the  authorities  were  uniform 
until  the  leading  case  of  Rex  v.  Mosley,  1  Moody,  C.  C.  97 ;  1  Lewin,  C.  C. 
189,  (1825),  which  was  twice  discussed  before  all  the  judges,  where  it  Avas 
decided  that  bruisers,  lacerations,  and  wounds,  all  contributing  to  the  death, 
need  not  be  described, —  Littlchalc  and  llolroyd,  .JJ.,  dissenting  and  hold- 
in;:  till'  indictment  invalid.  It  will  be  observed,  that  the  law  has  never  re- 
(julrcd  the  description  of  a  bruise  which  did  not  make  a  technical  wound. 


CHAF.  XXVIII.]  HOMICIDE.  249 

In  all  cases  the  death  by  the  means  stated  must  be  clearly 
and  positively  alleged ;  for  it  cannot  be  taken  to  be  so  by 


The  reasons  given  for  the  decision  in  Rex  v.  Mosley,  were,  that  it  did  not 
seem  material  to  prove  the  description  ;  and  Lawrence,  J.,  had  instructed 
the  clerk  of  assize  of  the  Oxford  circuit  to  omit  a  description  of  the  wounds 
•where  there  were  more  wounds  than  one.  The  next  case  in  England,  is 
Rex  V.  Turner,  1  Lewin,  C.  C.  177,  (1830,)  which  was  the  case  of  a  bruise, 
and  although  decided  on  the  authority  of  Rex  v.  Mosley,  the  hurt  was  de- 
scribed in  accordance  with  the  earlier  decisions  as  to  the  necessity  of  a  de- 
scription of  a  bruise.  The  next  case  is  Rex  v.  Tomlinson,  G  Carrington  & 
Payne,  370,  (1834,)  where  Patteson,  J.,  doubted,  but  Parke,  B.,  decided  that 
the  depth  of  a  bruised  wound  made  with  a  stone  need  not  to  be  described, 
from  his  memory  of  Rex  v.  Mosley.  Because,  he  said,  that  as  common 
sense  did  not  require  the  length,  breadth,  and  depth  of  the  wounds  to  be 
stated,  it  was  not  necessary  that  they  should  be  stated,  although  all  the  text 
■writers  have  assigned  as  a  reason,  that  the  wound  is  described,  so  that  the 
court  may  see  on  the  face  of  the  record  that  such  a  hurt  would  be  an  ade- 
quate cause  of  death.  It  is  to  be  remarked,  that  all  the  precedents  in  Eng- 
land, in  a  case  of  a  simple  incised  wound,  still  give  a  description  of  the 
wound.     These  last  two  cases  were  decisions  at  nisijmus. 

In  America,  the  earliest  reported  decisions,  are  the  cases  of  The  State  v. 
Owen,  1  ]\Iurphy,  452,  (1810,)  and  The  State  v.  Moses,  2  Devereaux,  452, 
(1830,)  in  North  Carolina.  In  the  last  of  which,  even  the  dissenting  judges 
admitted  the  law  to  be  as  here  contended,  so  far  as  the  description  of  an  in- 
cised -wound  is  concerned.  It  is  digested  in  Cox's  Digest  of  Reports  of 
Decisions  in  the  United  States  Courts,  p.  359,  referring  to  United  States  v. 
Maunier,  North  Carolina  Cases,  p.  79,  that  the  contrary  has  been  decided. 
And  it  is  to  be  observed,  that  afterwards,  decisions  in  North  Carolina  over- 
ruling the  decision  in  Maunier's  case  are  found,  in  which  no  reference  is 
made  or  notice  taken  of  any  such  decision.  The  next  case  is  The  State  v. 
Crank,  2  Bailey,  66,  (1831,)  which  decides  only  that  a  bruise  need  not  be 
described,  while  the  reasoning  of  the  court  would  seem  to  admit  the  doctrine 
here  asserted.  The  next  case  is  Stone  v.  The  State,  2  Scammon,  326,  338, 
(1840,)  when  it  is  only  decided,  that  such  description  is  not  bad  on  error, 
under  the  statute  provisions  of  Illinois.  The  next  case  is  Stone  v.  The  State, 
7  Blackford,  20,  (1843,)  where  the  depth  of  the  wound  is  not  described. 
But  the  judgment  was  reversed  on  other  points,  and  that  is  not  the  point  de- 
cided by  the  court.  In  a  very  recent  case  in  Virginia,  it  has  been  held,  that 
a  description  of  the  wound  is  not  necessary.  Commonwealth  v.  Lazier,  1 0 
Grattan,  708,  (1853).  In  this  case,  Moncure,  J.,  said,  "  At  common  law,  the 
omission  to  set  forth  the  length  and  depth  of  the  wound  would  in  no  case  be 
fatal."  In  Massachusetts,  in  the  case  of  Commonwealth  v.  Chapman,  The 
Monthly  Law  Reporter,  Vol.  7,  n.  s.  p.  155,  (1854,)  where  the  indictment 


250  HOMICIDE.  [CIIAP.  XXVIII. 

implication.  The  allegation  that  the  deceased  received  the 
hurt,  etc.,  which  is  laid  as  the  cause  of  his  death,  will  not  be 
sufficient;  and,  therefore,  if  the  death  be  caused  by  any 
stroke,  the  indictment  should  aver  that  the  prisoner  thereby 
gave  the  deceased  a  mortal  wound  or  bruise,  whereof  he  died ; 
or,  if  by  poison,  then,  after  stating  the  particular  mode  of 
poisoning,  it  should  be  distinctly  alleged  that  he  died  of  the 
poison  so  taken,  and  the  sickness  thereby  occasioned.^ 

The  respective  times  of  the  death,  and  of  the  wound  or 
other  cause  which  produces  it,  are  necessary  to  be  stated,  in 
order  that  it  may  appear  that  the  deceased  died  within  a  year 
and  a  day  from  the  stroke,  etc.  And  this  may  be  done  by 
stating  that  he  died  instantly  of  the  wound,  or  that  he  lan- 
guished of  the  same  till  the  day  mentioned  when  he  died  of 
the  said  mortal  wound.  But  a  mistake  in  these  dates  is  not 
material,  if  it  appear  by  the  evidence  that  the  death  happened 
within  the  year  and  a  day  from  the  stroke  or  poison,  etc., 
without  which  the  law  does  not  attribute  the  death  to  such 
cause.2  But  it  is  to  be  observed,  that  though  the  wound  be 
not  in  itself  so  mortal,  but  that  with  good  care  the  party 
might  be  cured,  yet,  if  he  dies  within  the  year  and  a  day,  it 
is  homicide,  the  degree  of  it,  however,  depending  upon  the 
circumstances  of  the  case ;  and  though  the  application  of  in- 
efficacious salves  or  medicines,  or  the  neglect  of  the  wound, 
should  produce  a  gangrene  or  fever,  which  is  the  immedi- 
ate cause  of  the  death,  yet  the  wound  being  the  cause  of  the 
gangrene  or  fever,  and  therefore  the  mediate  cause  of  death, 
the  party  striking  shall  answer  for  it.^    And  the  same  rule  holds 

charged  tliat  tlie  defendant  "  did  strike  and  bruise  "  the  deceased,  it  was 
held,  that  it  is  not  necessary  to  describe  either  tlie  length,  breadth,  or  depth 
of  the  wound.  But  the  court  were  of  opinion  that  in  the  case  of  a  simple 
incised  wound,  the  authorities  would  support  the  position  that  a  description 
is  necessary. 

>  1  f  ;al)lM;tt,  Crim.  Law,  501 ;  1  East,  V.  C.  313  ;  1  Starkie,  Crim.  Tl. 
(London  cd.  1828),  93;  Rex  v.  Lad,  1  Leach,  C.  C.  (-Itli  London  ed.),  96. 

»  1  East,  r.  C.  314;  1  Gal)bett,  Crim.  Law,  505. 

*  1  f  labbett,  Crim.  Law,  505  ;  1  East,  P.  C.  344  ;  Rew's  case,  Kelyng,  26  ; 
1  II.iIc,  r.  C.  428;  3  Greenlcaf,  Ev.  §  139;  McAllister  v.  The  State,  17 
Alaliania,  431  ;  Regiiia  v.  Holland,  2  ^Moody  &  Robinson,  351. 


CHAP.  XXYIII.]  HOMICIDE.  251 

if  the  wound  or  hurt  provokes  or  irritates  a  preexistent  dis- 
ease so  as  to  end  the  life  of  the  i)arty  before  the  time  that,  by 
the  course  of  nature,  it  would  probably  expire.  And  this 
hastening  of  his  death  is  homicide  or  murder,  as  the  case  may 
happen  to  be ;  because  the  party  does  not  die  simply  from  the 
visitation  of  God,  or  a  mere  natural  death.i  If,  however,  it 
can  clearly  and  certainly  appear,  that  the  medicine,  and  not 
the  wound,  was  the  cause  of  the  death,  though  administered 
in  consequence  of  the  wound,  then  it  seems  that  it  is  not 
homicide.2  It  is  also  necessary  in  indictments  for  murder  to 
allege  the  place  of  the  wound,  etc.,  and  of  the  death,  in  order 
that  it  may  appear  that  the  offence  is  properly  triable  in  the 
county  or  before  the  court  wljere  the  indictment  is  preferred ; 
but  though  the  wound  should,  upon  the  evidence,  appear  to 
be  at  another  place  in  the  same  county,  it  will  be  sufficient  to 
maintain  the  indictment.^ 

The  christian  and  surname  of  the  party  killed  must  be 
stated,  if  known.*^  The  name  so  stated  must  either  be  the  real 
name  of  the  party  injured,  or  that  by  which  he  is  usually 
known ;  as,  for  instance,  upon  an  indictment  for  the  murder 
of  a  bastard  child,  it  cannot  be  described  by  the  name  of  its 
mother,  unless  that  name  have  been  gained  by  reputation.^  A 
bastard  is  quasi  nullius  Jilius,  and  can  have  no  name  of  repu- 
tation as  soon  as  he  is  born.  Where,  therefore,  upon  an  in- 
dictment for  the  murder  of  a  female  bastard  child,  whose 
name  was  to  the  jurors  unknown,  it  appeared  that  the  child 
had  not  been  baptized,  but  that  the  mother,  the  prisoner,  had 
said  she  should  like  to  have  it  called  Mary  Ann,  and  little 


1  1  Gabbett,  Crim.  Law,  505 ;  1  East,  P.  C.  344. 
^  Ibid. 

3  1  Gabbett,  Crim.  Law,  506;  2  Hale,  P.  C.  180;  2  Hawkins,  P.  C.  ch. 
25,§  85 ;  3  Greenleaf,  Ev.  §  143  ;  Riggs  v.  The  State,  26  Mississippi,  51. 

*  Rex  V.  Norton,  Russell  &  Ryan,  C.  C.  510 ;  Rex  v.  Berriman,  5  Carring- 
ton  &  Payne,  001 ;  Anonymous,  6  Carrington  &  Payne,  408;  Rex  v.  Wil- 
liams, 7  Carrington  &  Payne,  298. 

*  Rex  V.  Clark,  Russell  &  Ryan,  C.  C.  358  ;  Rex  v.  Ellen  Waters,  1  ]\Ioody, 
C.  C.  457;  Reginaf.  Stroud,  2  Moody,  C.  C.  270;  1  Carrington  &  Kirwan, 
187 ;  Regina  v.  Evans,  8  Carrington  &  Payne,  765. 


252  HOMICIDE.  [chap,  xxvin. 

Mary,  it  was  held,  that  the  child  had  not  acquired  a  name  by 
reputation.^  A  child  cannot  be  described  as  "  a  certain  male 
infant  of  tender  age,  to  wit,  of  the  age  of,  etc.,  and  not  bap- 
tized.'' The  indictment  must  either  state  its  name,  or  if  it 
have  no  name  either  by  baptism  or  reputation,^  state  it 
to  be  to  the  jurors  unknown.^  But  the  absence  of  a  name 
was  held  to  be  sufficiently  accounted  for  by  the  child  being 
described  as  "  then  lately  before  born  of  the  body  of  A.  B. ; "  * 
or  "  a  certain  infant  female  child  born  of  the  body  of  A.  B., 
and  of  tender  years,  to  wit,  of  the  age  of  two  days,  and  not 
named."  ^  Where  the  defendant  was  indicted  for  killing  a 
woman  whose  name  was  to  the  jurors  unknown,  and  who  he 
sometimes  said  was  his  wife,^nd  sometimes  not,  and  there 
was  no  evidence  of  any  name  by  which  she  was  known,  it 
was  held,  that  if  she  was  not  his  wife,  and  if  her  name  could 
not  be  ascertained  by  any  reasonable  diligence,  the  descrip- 
tion was  correct.^  No  addition  is  requisite.'''  It  is  usual  to 
allege  that  the  party  killed  was  in  the  peace  of  the  State ; 
but  this  allegation  is  unnecessary.^ 

The  indictment  must  not  only  state  the  act  by  which  the 
death  is  occasioned  to  have  been  done  feloniously,  but  it 
must  also  be  specially  averred  to  be  done  of  "  malice  afore- 
thought ; "  which  is  the  great  characteristic  of  the  crime  of 
murder.  It  is  also  equally  necessary  to  state,  that  the  defend- 
ant "murdered"  the  deceased;  for  this  is  a  term  of  art,  and 


1  Rex  V.  Smith,  1  Moody,  C.  C.  402. 

*  See  llegina  v.  Stroud,  2  Moody,  C.  C.  270 ;  1  Carrington  &  Kirwan,  187. 

*  Regina  v.  Biss,  2  Moody,  C.  C.  93  ;  8  Carrington  &  Payne,  7  73;  Regina 
V.  Hicks,  2  Moody  &  Robinson,  302. 

*  Regina  v.  Hogg,  2  Moody  &  Robinson,  380.  Sec  Regina  v.  Willis,  1  Den- 
ison,  C.  C.80;  1  Carrington  &  Kirwan,  722  ;  1  Cox,  C.  C.  13G. 

"^ Regina  v.  Sarali  Waters,  1  Dcnison,  C.  C.  350  ;  1  Temple  &  ]\Iew,  C.  C. 
57,  and  Reporters'  notes. 

*  Regina  v.  Cam])bell,  1  Carrington  &  Kirwan,  82. 

'  Conimonwcallh  c  \  ariic)',  'I'iie  Monthly  I>aw  R(>porter,  vol.  6,  N.  S. 
p.  580. 

'  Conimonweallh  r.  ^Mnrpliy,  Tlie  I\Iunt]ily  Law  Reporter,  vol.  C,  N.  S. 
p.  4G1. 


CHAP.  XXVIII.]  HOMICIDE.  253 

cannot  be  otherwise  expressed.  Therefore,  if  the  indictment 
merely  allege,  that  the  mortal  stroke  was  given  feloniously,  or 
that  the  defendant  murdered  the  deceased,  without  adding  of 
"  malice  aforethought ; "  or  if  it  only  charge  that  he  killed  or 
slew,  without  averring  that  he  "  murdered  "  the  deceased,  the 
prisoner  can  only  be  convicted  of  manslaughter.^  Where, 
however,  an  indictment  charges,  that  A.  "  feloniously  and  of 
his  malice  aforethought,  assaulted  B.,  and  with  a  sword,  etc., 
then  and  there  struck  him,"  etc.,  the  first  allegation  of  "  feloni- 
ously and  of  his  malice  aforethought,"  applies  to  the  stroke  as 
well  as  to  the  assault.  So,  where  an  indictment  charged  that 
the  prisoner  "  wilfully,  feloniously,  and  of  her  malice  afore- 
thought," did  mix  poison,  to  wit,  white  arsenic  with  flour  and 
milk,  with  intent  that  the  same  should  be  afterwards  baked 
and  eaten  by  the  deceased,  and  the  same,  with  the  intent 
aforesaid,  did  then  and  there  deliver  to  the  deceased,  this  alle- 
gation was  held  sufficient,  without  adding  the  words  "feloni- 
ously and  of  her  malice  aforethought "  again  to  the  allegation 
of  the  delivery  of  the  poison ;  for  those  words,  being  coupled 
with  the  word  "and,"  and  the  words  "then  and  there,"  were 
considered  as  running  through  the  subsequent  allegation.^ 
In  Massachusetts,  it  has  been  very  recently  held,  that  it  is 
not  necessary  to  aver  that  the  assault  was  made  wilfully 
and  with  malice  aforethought.^ 

The  indictment  is  concluded  by  averring,  as  a  consequence 
from  the  antecedent  matter,  in  words  containing  a  positive 
allegation,  as  follows :  "  and  so  the  said  A.  the  said  B.,*  in 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and 


'  2  Deacon,  Crim.  Law,  930 ;  1  Starkie,  Crim.  PI.  (London  ed.  1828,)  58 ; 
DIas  r.  The  State,  7  Blackford,  20. 

^  Rex  V.  Nicholson,  1  East,  P.  C.  346.  But  see  contra,  Respublica  i\ 
Honcrman,  2  Dallas,  288 ;  Commonwealth  v.  Gibson,  2  Virginia  Cases,  70. 
See  also  Maile  v.  The  Commonwealth,  9  Leigh,  661. 

'  Commonwealth  v.  Chapman,  The  Monthly  Law  Reporter,  vol.  7,  n.  s. 
p.  155,  (1854).     See  Lester  v.  The  State,  9  Missouri,  666. 

*  If  the  name  of  the  deceased  be  omitted,  the  indictment  is  insufficient. 
Dias  V.  The  State,  7  Blackford,  20. 

22 


254  HOMICIDE.  [chap.  XXVIII. 

of  his  malice  aforethought,  did  (poison,)  kill,  and  murder."  ^  In 
which  conclusion,  if  the  day  be  specially  alleged,  where  the 
stroke  is  at  one  time  or  place,  and  the  death  at  another,  the 
day  should  be  that  on  which  the  party  died,  and  not  that  on 
which  he  was  struck  ;  for  it  is  not  murder  until  the  party  die.^ 


1.  For  manslaughter  against  the  engineer  of  a  steamboat,  for 
so  negligently  managing  the  engine  that  the  boiler  burst, 
and  thereby  caused  the  death  of  a  passenger? 

The  jurors,  etc.,  upon  their  oath  present,  that  Henry  Rob- 
ert Heasman,  late  of  the  parish  of  St.  Martin  in  the  Fields, 
in  the  county'of  Middlesex,  and  within  the  jurisdiction  of 
the  said  com-t,  engineer,  on  the  twenty-seventh  day  of  Au- 
gust, in  the  year  of  our  Jjord ,  at  the  parish  aforesaid,  in 

the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  was  employed  as  an  engineer  in  and  on  board  a  certain 
steamboat  called  the  Cricket,  then  and  there  floating  on  the 
waters  of  a  certain  river  called  the  Thames,  there  situate,  in  and 
on  board  which  said  steamboat  there  then  were  divers,  to  wit, 
one  hundred  of  her  Majesty's  liege  subjects  as  the  said  Henry 

^  In  Rex  V.  Nicholas,  7  Carrington  &  Payne,  538,  541,  Littledale,  J.,  said, 
"  The  common  forms  in  murder  and  manslaughter  do  not  allege  time  and 
place  at  the  end  of  the  indictment.  It  is  a  mere  conclusion,  and  I  think 
it  is  more  correct  to  leave  them  out."  In  Starkie's  Criminal  Pleading,  (vol. 
1,  p.  Go,)  it  is  said,  "In  an  indictment,  though  it  is  unnecessary  to  aver 
a  mere  conclusion  of  law  with  either  time  or  place,  yet  if  it  be  averred 
with  time  and  place,  and  improperly,  the  indictment  will  be  defective.  If, 
therefore,  the  stroke  be  laid  at  A.,  and  the  death  at  B.,  the  indictment  averring 
in  conclusion,  that  the  defendant  feloniously  murdered  the  said  C.  D.  at  A., 
is  vicious,  for  the  murder  was  completed  at  B.  by  the  death  of  the  party 
there." 

*  1  East,  P.  C.  3-17;  2  Deacon,  Crim.  Law,  931 ;  1  Gabbett,  Crim.  Law, 
507. 

*  2  Cox,  C.  C.  Appendix,  p.  C.  In  an  indictment  under  the  act  of  Con- 
gress, 1838,  7th  July,  §  12,  providing  that  any  act  of  "misconduct,  negli- 
gence, or  inattention,"  on  the  part  of  persons  employed  in  steamboat  naviga- 
tion, producing  death  as  a  result,  shall  be  deemed  manslaughter,  it  is  unnec- 
essary to  aver  or  prove  malicious  intent  iu  the  persons  charged.  United 
States  V.  Warner,  -1  ]McLean,  103. 


CHAP.  XXVIII.]  HOMICIDE.  255 

Robert  Heasman  then  and  there  well  knew ;  and  that  the 
said  Henry  Robert  Heasman,  as  such  engineer  as  aforesaid, 
then  and  there  had  and  took  upon  himself  the  care,  charge, 
management,  and  control  of  a  certain  steam-engine  and 
boiler,  being  then  and  there  in  and  attached  to  the  said  steam- 
boat, for  the  purpose  of  propelling  the  same,  and  in  which 
said  boiler  there  were  then  and  there  divers  large  quantities  of 
boiling  water,  whereby  to  generate  steam,  whereby  to  work 
the  said  steam-engine  as  the  said  Henry  Robert  Heasman 
then  and  there  well  knew ;  and  that  it  then  and  there  became 
and  was  the  duty  of  the  said  Henry  Robert  Heasman,  as 
such  engineer  as  aforesaid,  to  regulate  the  quantity  and 
amount  of  steam  to  be  generated  and  retained  within 
the  said  boiler,  during  the  time  the  said  boiler  was  used  and 
employed  for  the  purpose  aforesaid,  according  to  the  strength 
and  within  the  capacity  of  the  said  boiler.  Arid  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said 
Henry  Robert  Heasman,  on  the  day  aforesaid,  in  the  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  so  having  the  care, 
charge,  management,  and  control  of  the  said  boiler  as  afore- 
said, did  wilfully  and  feloniously  neglect  and  omit  to  regulate 
the  quantity  and  amount  of  steam  then  and  there  being  gen- 
erated and  retained  in  the  said  boiler,  according  to  the 
strength  and  within  the  capacity  of  the  said  boiler,  and  did 
then  and  there  wilfully,  negligently,  and  feloniously  permit 
and  suffer  a  much  larger  amount  of  steam,  to  wit,  ten  thou- 
sand cubic  feet  of  steam,  to  be  generated  and  retained  within 
the  said  boiler,  than  the  said  boiler  was  strong  enough  to  con- 
tain and  bear,  and  capable  of  containing  and  bearing,  and  that 
the  said  Henry  Robert  Heasman  did  then  and  there  by  his 
said  negligence  in  so  permitting  and  suffering  the  said  gener- 
ation and  retention  of  steam  within  the  said  boiler  more  than 
the  said  boiler  was  strong  enough  to  contain  and  bear,  and 
capable  of  containing  and  bearing  as  aforesaid,  unlawfully 
and  feloniously  cause  the  said  boiler  to  burst,  and  did  then 
and  there  by  means  of  the  said  bursting  of  the  said  boiler, 
with  force  and  arms  unlawfully  and  feloniously  make  an  as- 


256  HOMICIDE.  [chap.  XXVIII. 

sault.upon  one  Thomas  Shed,  the  younger,  on  board  the 
said  steamboat  then  and  there  lawfully  being,  and  the  said 
Thomas  Shed  down  upon  and  against  the  planks,  iron,  and 
timbers  of  the  said  steamboat,  called  the  Cricket,  then  and 
there  unlawfully  and  feloniously  did  cast  and  throw,  thereby 
then  and  there  giving  to  the  said  Thomas  Shed  one  mortal 
fracture  of  his  skull,  of  which  said  mortal  fracture  of  his 
skull  the  said  Thomas  Shed  then  and  there  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  Henry  Robert  Heasman,  on  the  day  aforesaid,  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed,  in  manner  aforesaid,  unlawfully  and  feloniously  did 
kill  and  slay,  against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Henry  Robert 
Heasman,  afterwards,  to  wit,  on  the  day  aforesaid,  and 
in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
being  then  and  there  the  engineer  in  and  on  board  the 
said  steamboat  called  the  Cricket,  then  and  there  floating 
on  the  waters  of  the  said  river  called  the  Thames,  there  situ- 
ate, and  on  board  which  said  steamboat  there  were  then  and 
there  divers  large  ruimbers  of  her  Majesty's  liege  subjects,  as 
the  said  Henry  Robert  Heasman  then  and  there  well  knew, 
had  and  took  upon  himself,  as  such  engineer  as  aforesaid,  the 
care,  charge,  management,  and  control  of  a  certain  steam- 
engine  and  boiler,  then  and  there  being  in  and  on  board 
the  said  steamboat,  and  in  which  the  said  last-mentioned 
boiler,  there  were  then  and  there  divers  large  quantities  of 
boiling  water,  for  the  purpose  of  generating  steam,  and  thereby 
working  the  said  engine,  and  that  it  then  and  there  became 
and  was  the  duty  of  Hie  said  Henry  Robert  Heasman  then 
and  there  so  to  regulate,  manage,  and  control  the  said  last- 
mentioned  Ijoiler  as  that  all  the  surj)lus  quantity  of  steam 
gciicralcd  :iiicl  made  williiii  (lie  said  last-mentioned  boiler, 
beyond  sueli  (jiiaiitity  of  sleam  as  the  said  last-mentioned 
boiler   was   caj)able    of  containing,   bearing,   and   retaining, 


CHAP.  XXVIir.]  HOMICIDE.  257 

might,  from  time  to  time,  and  at  all  times,  so  often  as  might 
be  necessary,  escape  from  and  out  of  the  said  last-mentioned 
boiler,  through  and  by  means  of  certain,  to  wit,  four,  safety 
valves,  which  were  then  and  there  made  and  constructed  in 
the  said  last-mentioned  boiler,  for  such  purpose  as  the  said 
Henry  Robert  Heasman  then  and  there  well  knew.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  Henry  Robert  Heasman,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  so  then  and 
there  having  the  care,  charge,  management,  and  control  of  the 
said  last-mentioned  boiler,  as  last  aforesaid,  did  then  and  there 
wilfully,  and  feloniously  neglect  to  regulate  the  quantity  and 
amount  of  steam  then  and  there  generated  and  contained 
within  the  said  last-mentioned  boiler  as  last  aforesaid,  and 
did  then  and  there  negligently,  wilfully,  and  feloniously  per- 
mit and  suffer  a  larger  quantity  and  amount  of  steam  to  be 
accumulated,  confined,  and  retained  within  the  said  last-men- 
tioned boiler  than  the  said  last-mentioned  boiler  was  capable 
of  containing  and  bearing,  whereby  it  then  and  there  became 
and  was  necessary  that  the  said  last-mentioned  steam  should 
escape  from  and  out  of  the  said  last-mentioned  boiler,  through 
and  by  means  of  the  said  safety  valves  or  one  of  them.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  Henry  Robert  Heasman,  well  knowing  the 
premises,  wilfully  and  feloniously  did  neglect  so  to  regulate, 
manage,  and  control  the  said  last-mentioned  boiler,  as  that 
the  said  last-mentioned  steam  could  escape  from  and  out 
of  the  said  last-mentioned  boiler,  through  and  by  means 
of  the  said  four  safety  valves,  or  one  of  them,  and  did  then 
and  there,  by  means  of  his  said  negligence,  as  in  this 
count  aforesaid,  unlawfully  and  feloniously  cause  the  said 
last-mentioned  boiler  to  burst,  and  did  then  and  there 
by  means  of  the  said  last-mentioned  bursting  of  the  said 
boiler,  with  force  and  arms,  unlawfully  and  feloniously 
make  an  assault  upon  the  said  Thomas  Shed,  and  the  said 
Thomas  8hed,  down  upon  and  against  the  planks,  iron,  and 
timbers  of  the  said  steamboat,  called  the   Cricket,  then  and 

22* 


2-58  HOMICIDE.  [CIIAP.  XXVIII. 

there  unlawfully  and  feloniously  did  cast  and  throw,  thereby 
then  and  there  giving  to  the  said  Thomas  Shed  one  mortal 
fracture  of  his  skull,  of  which  said  last-mentioned  mortal 
fracture  the  said  Thomas  Shed  then  and  there  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  Henry  Robert  Heasman,  on  the  day  and  year  last 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed,  in  manner  last  aforesaid,  unlawfully  and  feloniously 
did  kill  and  slay,  against  the  peace,  etc. 

Tliird  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Henry  Robert 
Heasman,  afterwards,  to  wit,  on  the  day  aforesaid,  and  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  being  then  and 
there  the  engineer  in  and  on  board  the  said  steamboat  called 
the  Cricket,  then  and  there  floating  on  the  waters  of  a  certain 
river  called  the  Thames,  there  situate,  and  in  and  on  board 
which  said  steamboat  there  were  then  and  there  divers  large 
numbers  of  her  Majesty's  liege  subjects,  as  the  said  Henry 
Robert  Heasman  then  and  there  well  knew,  w^as  intrusted 
with,  and  then  and  there  took  upon  himself,  as  such  engineer 
as  aforesaid,  the  care,  charge,  management,  and  control  of  a 
certain  steam-engine  and  boiler,  then  and  there  being  in  and 
on  board  the  said  steamboat,  and  in  which  said  last-mentioned 
boiler  there  were  then  and  there  divers  large  quantities  of 
water,  by  the  boiling  of  which  water  divers  large  quantities 
of  steam  were  then  and  there  continually  ascending  and  aris- 
ing, and  being  generated  and  made  within  the  said  last-men- 
tioned boiler,  and  that  the  said  last-mentioned  boiler  was 
then  and  there  made  and  constructed  with,  and  then  and 
there  had  certain,  to  wit,  four  safety  valves  and  openings, 
through  which  all  such  steam  within  the  said  last-mentioned 
boih'r,  so  Ijcing  generated  and  made  as  last  aforesaid,  beyond 
such  steam  as  liie  said  last-mentioned  boiler  was  capable  of 
holding  and  conlaining,  and  was  strong  enongh  to  hold  and 
contain,  might  and  could  and  would,  from  ■tini(>  to  liuK.',  es- 
capf  and  iind  vent  from  and  out  of  the  said  last-mentioned 


CHAP.  XXVIII.]  HOMICIDE.  259 

boiler,  without  hurt  or  damage  to  any  of  her  Majesty's  liege 
subjects ;  all  which  premises  the  said  Henry  Robert  Heasman 
then  and  there  well  knew.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  say,  that,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  and  whilst 
divers  large  quantities  of  steam  were  being  generated  and 
made  in  the  said  last-mentioned  boiler,  as  in  this  count  afore- 
said, the  said  Henry  Robert  Heasman  wilfully  and  feloniously 
did  close,  tie  down,  fasten,  and  keep  closed,  tied  down,  and 
fastened,  the  said  four  safety  valves  of  the  said  last-mentioned 
boiler,  and  by  such  closing,  tying  down,  and  fastening,  and 
keeping  closed,  tied  down,  and  fastened  the  said  safety  valves, 
did  then  and  there  hinder  and  prevent  the  said  steam,  so 
being  generated  and  made  in  the  said  last-mentioned  boiler 
as  last  aforesaid,  from  then  and  there  escaping  and  finding 
vent  from  and  out  of  the  said  last-mentioned  boiler,  as  it 
might  and  ought  and  otherwise  would  then  and  there  have 
done,  and  thereby  and  by  means  of  the  premises  in  this  count 
aforesaid,  the  said  Henry  Robert  Heasman  did  then  and  there 
unlawfully  and  feloniously  cause  the  said  last-mentioned 
boiler  to  burst,  and  did  then  and  there,  and  by  the  means  last 
aforesaid,  with  force  and  arms,  unlawfully  and  feloniously 
make  an  assault  upon  the  said  Thomas  Shed,  and  the  said 
Thomas  Shed,  down  upon  and  against  the  planks,  iron, 
and  timbers  of  the  said  steamboat,  called  the  Cricket,  then 
and  there  unlawfully  and  feloniously  did  cast  and  throw, 
thereby  then  and  there  giving  to  the  said  Thomas  Shed  one 
mortal  fracture  of  his  skull,  of  which  said  last-mentioned 
mortal  fracture  the  said  Thomas  Shed  then  and  there  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  Henry  Robert  Heasman,  on  the  day  and  year 
last  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed,  in  manner  last  aforesaid,  unlawfully  and  feloniously 
did  kill  and  slay,  against  the  peace,  etc. 

Fourth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do   further   present,  that  the   said    Henry  Robert 


260  HOMICIDE.  [chap.  XXVIII. 

Heasman,  afterwards,  to  wit,  on  the  day  aforesaid,  and  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  being  such  en- 
gineer as  aforesaid,  was  intrusted  with,  and  then  and  there 
took  upon  himself,  the  care,  management,  and  control  of  a 
certain  steam-engine  and  boiler,  then  and  there  being  in  the 
said  steamboat  called  the  Cricket,  in  which  said  last-men- 
tioned boiler  there  was  then  and  there  a  large  quantity,  to 
wit,  ten  thousand  cubic  feet  of  steam,  and  it  then  and  there 
became  and  was  the  duty  of  the  said  Henry  Robert  Heas- 
man to  provide  for  and  secure  the  escape  of  a  certain  quan- 
tity, to  wit,  five  thousand  cubic  feet  of  the  said  steam,  from 
and  out  of  the  said  last-mentioned  boiler,  in  order  to  prevent 
the  bursting  of  the  said  last-mentioned  boiler  from  the  press- 
ure of  the  said  steam.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  Henry  Robert 
Heasman,  well  knowing  the  premises,  but  wilfully  and  felo- 
niously neglecting  his  duty  in  that  behalf,  did  not  then  and 
there  provide  for  or  secure  the  escape  of  the  said  part  of  the 
said  steam  from  and  out  of  the  said  last-mentioned  boiler, 
but,  on  the  contrary  thereof,  wilfully,  negligently,  and  feloni- 
ously did  permit  and  suffer  the  said  quantity,  to  wit,  ten 
thousand  cubic  feet  of  steam  to  be  and  remain  in  the  said 
last-mentioned  boiler,  by  means  of  the  retention  of  which 
said  steam  in  the  said  last-mentioned  boiler,  and  the  press- 
ure thereof,  the  said  last-mentioned  boiler  did  then  and 
there  burst  and  explode,  and,  by  force  of  the  said  bursting 
and  explosion,  the  said  Thomas  Shed,  then  and  there  law- 
fully being  on  board  of  the  said  steamboat,  was  then  and 
there  thrown  and  cast  down  upon  and  against  the  planks, 
iron,  and  timbers  of  the  said  steamboat,  by  which  said 
throwing  and  casting  of  the  said  Thomas  Shed  down  upon 
and  against  the  planks,  iron,  and  timbers  of  the  said 
steamboat,  in  manner  last  aforesaid,  the  said  Henry  Rob- 
ert Heasman,  did  then  and  there  wilfully  and  feloniously  give 
to  the  said  Thomas  Shed  one  mortal  fracture  of  his  skull,  of 
which  said  last-mentioned  mortal  fracture  the  said  Thomas 
Shed  then  and  there  died.     And  so  the  jurors  aforesaid,  upon 


CHAP.  XXVIII.]  HOMICIDE.  261 

their  oath  aforesaid,  do  say,  that  the  said  Henry  Robert  Heas- 
man,  on  the  day  and  year  last  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  the  said  Thomas  Shed,  in  manner  last  afore- 
said, unlawfully  and  feloniously  did  kill  and  slay ;  against  the 
peace,  etc. 

Fifth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Henry  Robert 
Heasman,  afterwards,  to  wit,  on  the  day  aforesaid,  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  did  wilfully  and 
feloniously  close,  tie  down,  and  fasten,  and  did  keep  closed, 
tied  down,  and  fastened,  certain,  to  wit,  four,  safety-valves  of 
a  certain  boiler,  in  which  said  last-mentioned  boiler  divers 
large  quantities,  to  wit,  ten  thousand  cubic  feet,  of  steam, 
beyond  such  quantity  of  steam  as  the  said  last-mentioned 
boiler  was  capable  of  bearing,  were  then  and  there  accumu- 
lated, confined,  and  retained,  and  that  thereby,  and  by  means 
of  the  premises  in  this  count  mentioned,  the  said  Henry  Rob- 
ert Heasman,  did  then  and  there  unlawfully  and  feloniously 
cause  the  said  last-mentioned  boiler  to  burst,  and  did  then 
and  there,  and  by  the  means  last  aforesaid,  with  force  and 
arms,  unlawfully  and  feloniously  make  an  assault  upon  the 
said  Thomas  Shed,  and  the  said  Thomas  Shed,  down  upon 
and  against  the  planks,  iron,  and  timbers  of  a  certain  steam- 
boat called  the  Cricket,  then  and  there  being,  then  and 
there  unlawfully  and  feloniously  did  cast  and  throw,  thereby 
then  and  there  giving  to  the  said  Thomas  Shed  one  mortal 
fracture  of  his  skull,  of  which  said  last-mentioned  mortal 
fracture  the  said  Thomas  Shed  then  and  there  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the 
said  Henry  Robert  Heasman,  on  the  day  and  year  last  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed  in  manner  last  aforesaid,  unlawfully  and  feloniously  did 
kill  and  slay ;  against  the  peace,  etc. 

Sixth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,   do  further   present,   that  the  said  Henry    Robert 


262  HOMICIDE.  [chap.  XXVIII. 

Heasman,  afterwards,  to  wit,  on  the  day  aforesaid,  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  did  wil- 
fully and  feloniously,  by  causing  to  be  made  and  generated 
within  a  certain  boiler,  and  by  keeping  and  retaining  within 
the  said  last-mentioned  boiler  divers  large  quantities,  to 
wit,  ten  thousand  cubic  feet,  of  steam  more  than  the  said 
last-mentioned  boiler  was  strong  enough  and  able  to  con- 
tain and  bear,  cause  the  said  last-mentioned  boiler  to 
burst,  and  did  then  and  there,  and  by  the  means  last  afore- 
said, with  force  and  arms,  unlawfully  and  feloniously 
make  an  assault  upon  the  said  Thomas  Shed,  and  the  said 
Thomas  Shed,  down  upon  and  against  the  planks,  iron, 
and  timbers  of  a  certain  steamboat  called  the  Cricket,  then 
and  there  being,  then  and  there  unlawfully  and  feloniously 
did  cast  and  throw,  thereby  then  and  there  giving  to  the  said 
Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which  said 
last-mentioned  mortal  fracture  the  said  Thomas  Shed  then 
and  there  died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say  that  the  said  Henry  Robert  Heasman  on  the 
day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
the  said  Thomas  Shed,  in  manner  last  aforesaid,  unlawfully 
and  feloniously  did  kill  and  slay ;  against  the  peace,  etc. 

Seventh  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Henry  Robert  Heas- 
man, afterwards,  to  wit,  on  the  day  aforesaid,  in  the  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  with  force  and  arms, 
in  and  upon  one  Thomas  Shed,  in  and  on  board  of  a  certain 
steamboat  called  the  Cricket,  then  and  there  lawfully  being, 
did  make  an  assault,  and  a  certain  boiler,  then  fixed  in  the 
said  steamboat,  and  then  and  there  containing  and  having 
within  it  divers  large  quantities,  to  wit,  ten  thousand  cubic 
feet  of  steam,  and  ten  thousand  cubic  feet  of  va])or,  wil- 
fully and  feloniously  did  cause  to  burst  at,  upon,  and  against 
the  said  Thomas  Shed,  and  thereby  and  by  means  of  the 
force  and    violence    of   the  said  steam   and  vapor,   rushing 


CHAP.  XXVIII.]  HOMICIDE.  263 

and  escaping  from  the  said  last-mentioned  boiler,  and  by- 
means  of  the  broken  parts  of  the  boiler,  so  then  and  there 
burst  as  last  aforesaid,  the  said  Thomas  Shed  then  and  there 
unlawfully  and  feloniously  did  cast  and  throw  down  upon 
and  against  the  planks,  iron,  and  timbers  of  the  said  steam- 
boat called  the  Cricket,  then  and  there  being,  thereby  then 
and  there  giving  to  the  said  Thomas  Shed  one  mortal  frac- 
ture of  his  skull  of  which  said  last-mentioned  mortal  frac- 
ture the  said  Thomas  Shed  then  and  there  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  Henry  Robert  Heasman,  on  the  day  and  year  last 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  the  said  Thomas 
Shed,  in  manner  last  aforesaid,  unlawfully  and  feloniously 
did  kill  and  slay ;  against  the  peace,  etc. 

2.  For  manslai/gliter,  by  neglect  to  give  a  proper  signal  to  de- 
7iote  the  obstruction  of  a  line  of  railway,  whereby  a  col- 
lision took  place  and  a  passenger  was  killed.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  before  and  at 
the  time  of  committing  the  felony  hereinafter  mentioned, 
George  Pargeter,  late  of  the  parish  of  Shrivenham,  in  the 


^  1st.  This  indictment  charges,  that  the  prisoner's  duty  was  to  attend  to 
the  proper  Avorking  of  the  signals,  according  to  the  rules.  Held,  that  it  was 
not  necessary  to  set  out  the  rviles.  2d.  It  appeared  that  the  prisoner  had 
many  other  duties,  besides  attending  to  the  signal  posts,  some  of  them  being 
incompatible  with  his  duty  there.  Held,  that  it  was  not  necessary  to  set 
forth  all  the  other  duties,  and  then  to  negative  that  the  prisoner  was  em- 
ployed at  the  time  in  the  discharge  of  either  of  such  other  duties.  3d.  Held, 
that  an  averment  that  it  was  prisoner's  duty  to  signal  an  obstruction,  and 
there  was  an  obstruction  which  prisoner  neglected  to  signal,  was  a  sufS- 
cient  description  of  the  offence,  and  that  it  was  not  necessary  to  aver 
that  the  prisoner's  duty  was,  if  there  was  an  obstruction  and  he  saw  it,  to 
signal  it,  and  that  there  was  an  obstruction  which  he  might  have  seen,  but 
neglected  to  see.  4th.  That  it  is  sufficient  to  aver  the  duty  to  be  to  make  "  a 
proper  signal,"  without  further  describing  it.  5th.  That  a  count  which 
charged  hotli  a  neglect  to  give  the  risrht  sifinal,  and  the  givin'r  of  the  wrong 
signal,  is  not  bad  for  duplicity.    6th.  That  it  is  sufficient  to  charge  "  that  the 


264  HOMICIDE.  [chap.  XXVIII. 

county  of  Berks,  laborer,  on  the  eleventh  day  of  May  in  the 

year  of  our  Lord ,  at  the  parish  aforesaid,  in  the  cbunty 

of  Berks  aforesaid,  was  a  servant  and  policeman  in  the  ser- 
vice and  employ  of  a  certain  company,  to  wit,  the  Great 
Western  Railway  Company,  in  and  upon  a  certain  railway, 
to  wit,  the  Great  Western  Railway.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  before 
and  at  the  time  of  committing  the  said  felony,  certain  signal 
posts  had  been  and  were  erected  by  the  said  company  near  to 
certain  stations  upon  the  said  railway,  for  the  purpose  of 
making  signals  for  the  regulation,  guidance,  and  warning  of 
the  drivers  of  locomotive  engines  attached  to  and  drawing 
the  trains  of  carriages  travelling  upon  and  along  the  said  rail- 
way, which  said  signals  were  sufficient  and  proper  for  the 
purposes  aforesaid,  and  were,  at  the  time  of  the  committing 
of  the  said  felony,  in  constant  use  and  in  full  force  and  effect, 
and  well  known  to  the  said  G.  P.,  to  wit,  at  the  parish  afore- 
said, in  the  county  of  Berks  aforesaid.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  one  of 
such  signals,  in  such  use  and  so  used  as  aforesaid,  and  known 
to  the  said  G.  P.  as  aforesaid,  when  made,  denoted,  and  was 
intended  to  denote  and  give  warning  and  notice  to  the  said 
drivers,  that  the  line  of  the  said  railway,  at  the  station  near 
unto  which  the  said  signal  was  made,  was  then  free  from  ob- 
struction ;  and  that  the  driver  of  any  engine  attached  to  and 
drawing  any  train  of  carriages  then  approaching  the  said  sta- 
tion, might  safely  pass  through  the  same,  with  the  train,  with- 
out stopping,  and  which  said  signal  was  then  and  there  called 
and  known  by  the  name  of  the  "all  right"  signal,  and  that 
one  other  of  such  signals  so  used  as  aforesaid,  and  known  to 
the  said  G.  P.  as  aforesaid,  when  made,  denoted,  and  was 
intended  to  denote  and  give  warning  and  notice  to  the  said 
drivers,  that  the  line  of  the  said  railway  near  to  which  the 
said  last-menlioned  signal  \yas  made,  was  then  obstructed; 


prisoner  did  ncgluct  and  omit  to  alter  tlu;  said  signal,"  without  stating  more 
particularly  wliat  was  the  ,si)ecirn;  alU'ralion  which  hu  so  ucylectod  to  make. 
Kf-'ina  v.  Targe  tor,  3  Cox,  C.  C  IDl. 


CHAP.  XXVIII.]  HOMICIDE.  265 

and  that  the  driver  of  any  engine  attached  to  and  drawing 
axiy  train  of  carriages  then  approaching  the  said  station  could 
not  safely  pass  through  the  same,  with  the  train,  without 
stopping,  and  which  said  last-mentioned  signal  was  then  and 
there  called  and  known  by  the  name  of  the  signal  "to  stop." 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  certain  rules  and  directions  had  been  and  were 
at  the  lime  of  the  committing  of  the  said  felony,  established 
for  the  guidance  of  the  conduct  of  the  servants  and  police- 
men of  the  said  company  employed  in  and  upon  the  said  rail- 
way, and  having  the  care  and  regulation  of  the  said  signals, 
and  which  said  rules  and   regulations  were  sufficient  and 
proper  for  the  purposes  aforesaid,  and  were,  at  the  time  of 
committing  the  said  felony,  in  full  force  and  effect,  and  well 
known  to  the  said  G.  P.,  to  wit,  at  the  parish  aforesaid,  in  the 
said  county  of  Berks.     And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  G.  P.  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
of  Berks  aforesaid,  in  and  upon  one  Arthur  Augustus  Lea 
feloniously  did  make  an  assault;  and  that  the  said  G.  P.  so 
being  such  servant  and  policeman  in  the  service  and  employ- 
ment of  the  said  Great  Western  Railway  Company  as  afore- 
said, then  and  there  had,  by  virtue  of  such  his  employment, 
the  care  and  regulation  of  the  said  signals,  at  a  certain  signal 
post  erected  and  being  near  a  certain  station  on  the  said  line 
of  the  said  railway,  to  wit,  the  Shrivenham  Station,  and  near 
the  line  of  the  said  railway  there,  and  that  before  and  on  the 
said  eleverith  day  of  May  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  of  Berks  aforesaid,  it  became  and 
was  the  duty  of  the  said  G.  P.  to  attend  to  the  due  and 
proper  righting,  exhibiting,  and  making  of  the  said  signals  at 
the  said  last-mentioned  station,  and  duly  and  properly  to 
work,  exhibit,  and  make  the  same,  according  to  the  rules  and 
regulations  there  established  for  the  guidance  of  the  conduct 
of  the  servants  and  policemen  of  the  said  company  employed 
in  and  upon  the  said  railway  as  aforesaid.     And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 

23 


266  HOMICIDE.  [chap,  xxyiii. 

county  of  Berks  aforesaid,  a  certain  train  of  carriages  drawn  by 
a  locomotive  engine,  under  the  care  and  guidance  of  a  certain 
driver  thereof,  to  wit,  one  Robert  Roscoe,  was  travelling  on 
the  said  railway,  to  wit,  from  Exeter  to  London,  and  was 
before  and  at  the  time  of  the  committing  of  the  felony  by  the 
said  G.  P.  as  hereinafter  mentioned,  due  at  the  said  Shriven- 
ham  Station,  to  wit,  at  the  hour  of  three  of  the  clock  in  the 
afternoon  of  the  said  eleventh  day  of  May,  and  was  expected 
and  intended,  according  to  the  time  table  and  regulations  by 
the  said  company  in  that  behalf  established,  to  arrive  and 
pass  through  the  said  Shrivenham  Station,  at  the  time  and 
hour  last  aforesaid,  as  the  said  G.  P.  then  and  there  well 
knew ;  and  that  the  said  G.  P.  had  then  and  there,  in  expecta- 
tion of  the  arrival  of  the  said  last-mentioned  train  of  car- 
riages, made  and  turned  on  the  signal  called  the  "  all  right " 
signal.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  afterwards  and  before  the  arrival  of 
the  said  last-mentioned  train  of  carriages  at  the  Shrivenham 
Station,  to  wit,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  of  Berks  aforesaid,  a  certain  carriage, 
to  wit,  a  horse  box,  w^as  put  and  placed  and  continued,  and 
was  upon  and  across  and  obstructing  the  same  line  of  rails 
of  the  said  railway,  near  to  the  said  Shrivenham  Station, 
as  that  on  which  the  said  last-mentioned  train  of  carriages 
was  then  travelling,  and  it  thereupon  then  and  there,  and  in 
consequence  of  such  last-mentioned  obstruction,  became  and 
was  the  duty  of  the  said  G.  P.  to  alter,  remove,  and  turn  off 
the  said  signal  called  the  "all  riglit"  signal,  and  to  make, 
turn  on,  and  keep  made  and  turned  on,  the  said  signal  called 
the  signal  "  to  stop."  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  G.  P.  then  and 
there  being  wholly  mimindful  and  noglectfal  of  his  duty  in 
that  behalf,  at  the  time  and  ])lace  last  aforesaid,  on  the  day 
and  year  aforesaid,  at  the  parish  aforesaid,  In  the  county  of 
Berks  aforesaid,  with  force  and  arms,  unlawfully  and  feloni- 
ously did  neglect  and  omit  to  alter,  remove,  and  Im'n  off  the 
said  signal  callcl  \\\c  "all  right"  signal,  and  did  then  and 
there  unlawfully  and  IVluniously  neglect  and  omit  to  make. 


CHAP.  XXVIII.]  HOMICIDE.  267 

turn  on,  and  keep  made  and  turned  on,  the  said  signal  called 
the  signal  "  to  stop."  By  means  of  which  several  premises, 
and  of  the  said  felonious  omissions  and  neglect  by  the  said 
G.  P.  as  aforesaid,  the  driver  of  the  engine  attached  to  the 
said  last-mentioned  train  of  carriag^,  to  wit,  the  said  R.  R., 
was  induced  to  believe,  and  did  believe,  that  the  line  of  rails 
of  the  said  railway,  upon  which  the  last-mentioned  train  of 
carriages  was  then  travelling,  was  then  all  clear  and  without 
obstruction,  and  that  the  said  driver,  to  wit,  the  said  R.  R., 
might  then  safely  pass  through  the  said  Shrivenham  Station 
with  the  last-mentioned  engine  and  train  of  carriages  without 
stopping ;  and  the  said  driver,  to  wit,  the  said  R.  R.,  acting 
upon  such  belief  as  aforesaid,  did  thereupon,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  of  Berks 
aforesaid,  drive  the  said  engine  so  attached  to  and  drawing 
the  last-mentioned  train  of  carriages  as  aforesaid,  through  the 
said  Shrivenham  Station,  and  in  so  drawing  the  said  last- 
mentioned  engine  and  train  of  carriages  did  then  and  there 
unavoidably,  and  without  any  fault  or  default  of  the  said  R. 
R.,  with  great  force  come  into  violent  contact  and  collision 
with  the  said  carriage,  called  a  horse  box,  then  being  on, 
upon,  and  across  and  obstructing  the  same  line  of  rails  of  the 
said  railway  as  that  on  which  the  said  last-mentioned  train  of 
carriages  was  then  travelling,  near  to  the  said  Shrivenham 
Station  there,  by  means  of  which  said  contact  and  collision 
caused  and  occasioned  as  aforesaid,  the  said  A.  A.  L.  then 
lawfully  being  and  travelling  in  one  of  the  carriages  of  the 
said  last-mentioned  train  of  carriages,  v/as  then  and  there  vio- 
lently and  forcibly  thrown  on  and  against  the  back  and  sides 
of  the  said  carriage  in  which  he  was  so  travelling  as  aforesaid, 
and  was  then  and  there  violently  and  forcibly  cast  and  thrown 
from  and  out  of  the  said  carriage  in  which  he  was  so  travel- 
ling as  aforesaid,  down  to  and  upon  the  ground  there ;  by 
means  of  which  said  casting  and  throwing  of  the  said  A.  A.  L., 
as  well  to  and  against  the  sides  and  back  of  the  said  carriage 
in  which  he  was  so  travelling  as  aforesaid,  as  from  and  out 
of  the  said  carriage,  down  to  and  upon  the  ground  there  as 
aforesaid,  the  said  A.  A.  L.  then  and  there  had  and  received, 


268  HOMICIDE.  [chap.  XXVIII. 

and  the  said  G.  P.  then  and  there  feloniously  did  give  and 
cause  to  be  given  to  the  said  A.  A.  L.  divers  mortal  wounds, 
bruises,  and  contusions,  in  and  upon  the  head,  body,  arms, 
and  legs  of  the  said  A.  A.  L.,  and  divers  mortal  fractures  of 
both  the  legs  of  the  sai(J|A.  A.  L.,  and  divers  mortal  ruptures 
of  the  bloodvessels  in  and  upon  the  brain  of  the  said  A.  A.  L., 
of  which  said  mortal  wounds,  bruises,  and  contusions,  mortal 
fractures  and  mortal  ruptures  of  the  said  A.  A.  L.  on  and 
from  the  said  eleventh  day  of  May  in  the  year  aforesaid,  as 
well  at  the  parish  of  Shrivenham  aforesaid,  in  the  county 
of  Berks  aforesaid,  as  at  the  parish  of  Swindon,  in  the  county 
of  Wilts,  did  languish,  and  languishing  did  live,  and  there, 
to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  of 
Swindon  aforesaid,  in  the  county  of  Wilts  aforesaid,  of  the 
said  mortal  wounds,  bruises,  and  contusions,  mortal  fractures 
and  mortal  ruptures,  did  die.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  G.  P.,  in  man- 
ner and  form  aforesaid,  the  said  A.  A.  L.,  at  the  parish  of 
Swindon  aforesaid,  in  the  county  of  Wilts  aforesaid,  feloni- 
ously did  kill  and  slay ;  against  the  peace,  etc. 

Second  Count.  —  The  second  count  states  that  "  It  was  the 
duty  of  the  said  G.  P.  as  such  servant  and  policeman  as 
aforesaid,  to  make  certain  signals  to  the  drivers  of  locomotive 
engines  attached  to  and  drawing  or  propelling  trains  travelling 
upon  and  along  the  said  railway,  and  passing  along  the  same 
at  a' certain  ])art  thereof,  to  wit,  near  a  certain  station,  to  wit, 
the  said  Shrivenham  station,  to  wit,  at  the  parish  of  Shriven- 
ham aforesaid,  in  the  county  of  Berks  aforesaid,  for  the  pur- 
pose of  giving  warning  and  notice  to  the  said  drivers,  whether 
the  line  of  rails  of  the  said  railway  on  and  upon  which  any 
such  locomotive  engine  and  train  of  carriages  as  aforesaid, 
should  or  might  be  passing  at,  near,  and  through  the  said 
Shrivenham  station,  was  free  of  obstruction  or  not,  of  all 
which  Ihe  said  G.  P.  at  the  time  of  the  committing  of  the 
said  fel(Miy  hud  full  knowledg(!  and  not  ice,  to  wit,  at  the  day 
and  year  last  aforesaid,  at  the  ])arish  last  aforesaid,  in  the 
comity  of  J'erks  aforesaid."  It  Ihcii  proceeds  to  avcn*  that  a 
train    was  travelling    on   the    line,    "on    and  ahnig  the  part 


CHAP.  XXYIII.]  HOMICIDE.  269 

of  the  said  railway  which  lies  in  the  said  parish,  etc.,  and  up 
to,  and  towards  the  place  where  it  was  the  duty  of  the  said 
G.  P.  to  make  such  signals  as  aforesaid,"  and  that  just  before 
the  time  of  its  arrival  at  the  said  place,  "  there  was  a  certain 
obstruction  on  and  upon  the  same  line  of  rails  as  that  upon 
which  the  said  last-mentioned  locomotive  engine  and  train 
was  travelling,  to  wit,  a  certain  horse  box,  standing,  and  being 
upon  and  across  the  said  last-mentioned  line  of  rails,  near  to 
the  place  where  it  was  the  duty  of  the  said  G.  P.  to  make 
such  signals  as  last  aforesaid,  to  wit,  at  the  parish  last  afore- 
said, in  the  county  of  Berks.  And  the  said  G.  P.  could,  and 
might,  and  ought,  then  and  there,  to  wit,  at  the  parish  last 
aforesaid,  in  the  county  of  Berks,  on  the  said  eleventh  day  of 
May,  in  the  year  aforesaid,  in  the  course  of  his  duty,  and  in 
the  exercise  of  reasonable  and  proper  skill  and  diligence,  to 
have  given  warning  and  notice  by  means  of  the  proper  signal 
to  the  driver  of  the  said  last-mentioned  locomotive  engine, 
attached  to  and  drawing  the  last-mentioned  train  of  carriages, 
to  wit,  the  said  R.  R.,  that  there  was  then  such  obstruction  as 
last  aforesaid,  in  and  upon  the  said  line  of  rails,  to  wit,  the 
said  horse  box.  And  the  jurors,  etc.,  do  further  present,  that 
the  said  G.  P.  then  and  there  being  wholly  unmindful  and 
neglectful  of  his  duty  in  that  behalf,  on,  etc.,  at  the  parish, 
etc.,  with  force  and  arms,  unlawfully  and  feloniously  did  neg- 
lect and  omit  to  give  notice  and  warning,  by  means  of  the 
proper  signal,  to  the  driver  of  the  last-mentioned  locomotive 
engine  attached  to  and  drawing  the  said  last-mentioned  train 
of  carriages,  to  wit,  the  said  R.  R.,  that  then  there  was  an  ob- 
struction upon  the  same  line  of  rails  as  that  on  which  the  said 
last-mentioned  train  of  carriages  was  then  travelling,  by 
means  of  which,"  etc. 

Third  Count. —  The  third  count  states  the  averment  of  the 
signals,  and  of  the  prisoner's  duty,  thus  :  —  Reciting,  that  the 
said  G.  P.  was  in  the  employ,  etc.,  as  a  policeman,  and  that 
"  for  the  safe  and  proper  working  and  travelling  of  the  several 
trains  of  carriages  and  locomotive  engines  proceeding  along 
and  upon  the  said  railway,  certain  signals  had  been  and  were 
at  the  time  of  the  committing  of  the  offence  by  the  said  G. 

23* 


270  HOMICIDE.  [chap.  XXVIII. 

P.  as  hereinafter  mentioned,  established  by  the  said  company 
at  and  near  a  certain  station  upon  the  said  railway,  and  at 
and  near  the  said  station,  to  wit,  the  Shrivenham  station, 
at  which  the  said  G.  P.  was  employed  as  aforesaid,  and  were 
well  known  to  the  said  G.  P.,  to  wit,  at  the  parish  last  afore- 
said, in  the  county  of  Berks  aforesaid.  And  the  jurors,  etc., 
do  further  present,  that  on  the  said,  etc.,  at  the  parish,  etc.,  the 
said  G.  P.  had  the  care  and  control  of  the  said  signals,  at  the 
said  station,  to  wit,  the  Shrivenham  station,  at  which  the  said 
G.  P.  was  so  employed  as  servant  or  policeman  as  aforesaid, 
and  it  then  and  there  became  and  was  the  duty  of  the  said 
G.  P.  by  virtue  of  such  his  employment  as  aforesaid,  from 
time  to  time,  and  at  all  times,  as  occasion  might  require,  to 
make  due  and  proper  signals  to  the  drivers  of  all  locomotive 
engines  travelling  along  and  upon  the  said  railway,  and  enter- 
ing the  said  station,  to  wit,  the  Shrivenham  station."  The 
count  then  proceeds  to  set  forth,  that  a  train  was  travelling 
on  the  said  line  of  railway,  that  a  horse  box  had  been  placed 
upon  and  across  it  so  as  to  obstruct  the  passage  of  the  train, 
"  and  that  it  thereupon  then  and  there  became  the  duty  of  the 
said  G.  P.  to  indicate  by  proper  signals  to  the  driver  of 
the  said  last-mentioned  train  of  carriages  so  due  and  about 
to  enter  and  pass  through  the  said  last-mentioned  station  as 
aforesaid,  that  the  line  of  rails  of  the  said  railway  upon  which 
the  said  last-mentioned  train  of  carriages  were  then  travelling, 
was  there  obstructed.  And  the  jurors,  etc.,  do  further  present, 
that  the  said  G.  P.  afterwards,  to  wit,  on  the  day,  etc.,  at  the 
parish,  etc.,  wholly  neglecting  his  duty  in  that  behalf,  with 
force  and  arms,  unlawfully  and  feloniously  did  neglect  and 
omit  to  indicate  by  proper  signals  to  the  driver  of  the  said 
last-mentioned  train  of  carriages  so  travelling  upon  the  said 
railway  as  aforesaid,  and  so  due,  and  about  to  enter  and  pass 
through  the  said  last-mentioned  station  as  aforesaid,  that  the 
line  of  rails  of  the  said  railway  upon  which  the  said  last- 
meiition(,'d  train  of  carriages  was  then  travelling,  was  then 
obstructed,  but  on  the  contrary  thereof,  the  said  G.  P.  then 
and  there  unlawfully  and  feloniously  did  indicate  by  signals 
to  llic   driver  of  the  said  last-mentioned  train  of  carriages, 


CHAP.  XXVIII.]  HOMICIDE.  271 

that  the  line  of  rails  of  the  said  railway,  on  which  the  said 
last-mentioned  train  of  carriages  was  then  travelling,  at  or 
near  the  said  last-mentioned  station,  was  then  all  clear  and 
free  from  obstructions,  by  means  of  which  several  premises 
and  the  said  felonious  omissions  and  neglects  of  the  said  G. 
P."  etc.  etc. 

The  fourth  count  was  a  common  count  for  manslaughter, 
by  assaulting,  beating,  and  bruising,  etc. 


4.  For  manslaughter  against  the  driver  and  stoker  of  a  rail- 
way engine,  for  negligently  driving  against  another 
engine,  whereby  the  deceased  met  his  death} 

The  jurors,  etc.,  upon  their  oath  present,  that  S.  H.  late  of 
the  parish  of  Richmond,  in  the  county  of  Surrey,  laborer,  and 
W.  W.  late  of  the  same  place,  laborer,  on  the  seventeenth 

day  of  November  in  the  year  of  our  Lord ,  with  force 

and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  in  and  upon  R.  P. 
feloniously  and  wilfully  did  make  an  assault.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
before  and  on  the  said  seventeenth  day  of  November,  the 
said  S.  H.  was  employed  by  a  certain  body  corporate,  to  wit, 
the  London  and  South- Western  Railway  Company,  for  the 
purpose  of  conducting,  driving,  managing,  and  controlling 
certain  locomotive  steam-engines  belonging  to  the  said  Lon- 
don and  South-Western  Railway  Company,  and  that  the 
said  W.  W.  before  and  on  the  day  and  year  aforesaid,  was 
employed  by  the  said  London  and  South- Western  Railway 
Company,  for  the  purpose  of  assisting  the  said  S.  H.  in  the 
conducting,  driving,  management,  and  control  of  such  loco- 
motive steam-engines  as  aforesaid,  and  that,  by  virtue  of  such 
their  respective  employments,  the  said  S.  H.  was,  on  the  day 
and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  con- 

^  3  Cox,  C.  C.  Appendix,  p.  Ivii. 


272  H0MICI15E.  [chap.  XXVIII. 

ducting  and  driving,  and  then  and  there  had  the  management 
and  control  of  a  certain  locomotive  steam-engine,  to  and  be- 
hind which  a  certain  carriage,  called  a  tender,  was  then  and 
there  attached,  and  which  said  locomotive  steam-engine  and 
tender  were  then  and  there  the  property  of  and  belonging  to 
the  said  London  and  South- Western  Railway  Company,  and 
were  then  and  there  in  and  upon  a  certain  side  line  of  rail- 
way leading  into  and  upon  a  certain  main  line,  to  wit,  the 
Richmond  Railway,  and  the  said  W.  W.  was  then  and  there, 
the  said  S.  H.,  in  and  about  the  said  conducting,  driv- 
ing, management,  and  control  of  the  said  locomotive  steam- 
engine  and  tender,  aiding  and  assisting,  and  that  it  then  and 
there  became  and  was  the  duty  of  the  said  S.  H.  and  of  the 
said  W.  W.,  by  virtue  of  their  said  employment,  not  to  con- 
duct or  drive,  or  suffer  or  permit  to  be  conducted  or  driven, 
the  said  locomotive  steam-engine  and  tender  from  and  off  the 
said  side  line  of  railway,  into,  upon,  or  across  the  said  main  line 
of  railway,  in  case  any  train  or  engine  should  be  then  due, 
and  about  to  arrive  at  that  part  of  the  said  main  line  of  rail- 
way where  the  same  was  joined  by  the  said  side  line  of  rail- 
way aforesaid ;  yet  the  said  S.  H.  and  the  said  W.  W.,  well 
knowing  the  premises,  and  well  knowing  that  a  certain  train, 
to  wit,  a  train  consisting  of  a  certain  other  locomotive  steam- 
engine,  with  a  certain  other  tender,  and  divers,  to  wit,  twenty 
carriages  attached  thereto  and  drawn  thereby,  was  then  and 
there  lawfully  travelling,  and  being  propelled  on  and  along 
the  said  main  line  of  railway,  and  was  then  due  and  about 
to  arrive  at  that  part  of  the  said  main  line  of  railway  where 
the  same  was  joined  by  the  side  line  of  railway  aforesaid ; 
but  disregarding  their  duty  in  that  behalf,  did,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  wilfully  and 
feloniously,  and  with  great  force  and  violence,  and  in  a  wan- 
ton, negligent,  and  improper  manner,  and  contrary  to  their 
said  duty  in  that  behalf,  and  while  the  said  train  was  so  then 
and  there  due,  and  about  to  arrive  as  aforesaid,  conduct  and 
drive,  and  suffer  and  permit  to  be  conducted  and  driven,  the 
said  first-mentioned  locomotive  steam-engine  and  tender  from 


CHAP.  XXVIII.]  HOMICIDE.  273 

and  off  the  said  line  of  railway,  into,  upon,  and  across  the 
said  main  line  of  railway,  and  into,  upon,  and  against  the 
said  train  so  then  and  there  lawfully  travelling  and  being  pro- 
pelled on  and  along  the  said  main  line  of  railway  as  afore- 
said ;  and  that  the  said  S.  H.  and  the  said  W.  W.  did  thereby, 
and  by  means  of  the  said  several  premises,  and  by  reason  of 
the  shock  and  concussion  thereby  given  and  communicated 
to  the  said  first-mentioned  locomotive  steam-engine,  then  and 
there  wilfully  and  feloniously,  and  with  great  force  and  vio- 
lence, push,  force,  dash,  drive,  and  jam,  and  cause  to  be 
pushed,  forced,  dashed,  driven,  and  jammed  in,  upon,  over, 
against,  and  between  a  certain  part  of  the  said  first-men- 
tioned locomotive  steam-engine,  to  wit,  the  hinder  part 
thereof,  the  said  R.  P.,  who  was  then  and  there  standing  and 
being  in  and  upon  the  said  first-mentioned  locomotive  steam- 
engine,  and  did  then  and  there,  by  means  of  the  pushing, 
forcing,  dashing,  and  driving  and  jamming  aforesaid,  wilfully 
and  feloniously  inflict  and  cause  to  be  inflicted  in  and  upon 
the  head,  to  wit,  in  and  upon  the  right  side  of  the  head  of  the 
said  R.  P.,  divers  mortal  wounds  and  fractures,  anfl  in  and 
upon  the  body,  to  wit,  in  and  upon  the  back,  sides,  belly, 
thighs,  legs,  and  feet  of  the  said  R.  P.,  divers  mortal  wounds, 
bruises,  contusions, '  burns,  and  scalds,  of  which  said  several 
mortal  wounds,  fractures,  bruises,  contusions,  burns,  and  scalds, 
the  said  R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  instantly  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  S.  H.  and  the 
said  W.  W.,  the  said  R.  P.,  in  the  manner  and  by  the  means 
aforesaid,  wilfully  and  feloniously  did  kill  and  slay ;  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.  and  the  said 
W.  W.,  on  the  day  and  year  aforesaid,  with  force  and  arms, 
at  the  parish  of  Richmond,  in  the  county  of  Surrey,  and 
within  the  jurisdiction  of  the  said  court,  \\\  and  upon  the  said 
R.  P.,  feloniously  and  wilfully  did  make  an  assault.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present' 


274  HOMICIDE.  [chap.  XXVIII. 

that  before  and  on  the  day  and  year  aforesaid,  the  said  S.  H. 
was  employed  by  a  certain  corporate  body,  to  wit,  the  Lon- 
don and  South- Western  Railway  Company,  for  the  purpose 
of  conducting,  driving,  managing,  and  controlling  certain 
locomotive  steam-engines  belonging  to  the  said  London  and 
South- Western  Railway  Company,  and  the  said  W.  W.,  be- 
fore and  on  the  day  and  year  aforesaid,  was  employed  by  the 
said  London  and  South- Western  Railway  Company,  for  the 
purpose  of  assisting  the  said  S.  H.  in  the  conducting,  driving, 
management,  and  control  of  such  locomotive  steam-engines  as 
aforesaid,  and  that  by  virtue  of  such  their  respective  employ- 
ments, the  said  S.  H,  was,  on  the  day  and  year  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  conducting  and  driving,  and 
then  and  there  had  the  management  and  control  of  a  certain 
locomotive  steam-engine,  to  and  behind  which  a  certain  car- 
riage, called  a  tender,  was  then  and  there  attached,  and  which 
said  locomotive  steam-engine  and  tender  were  then  and  there 
the  property  of  and  belonging  to  the  said  London  and  South- 
western Railway  Company,  and  were  then  and  there  in  and 
upon  a  certain  side  line  of  railway,  leading  into  and  upon  a 
certain  main  line  of  railway,  to  wit,  the  Richmond  Railway, 
and  that  the  said  W.  W.  was  then  and  there,  the  said  S.  H., 
in  and  about  the  said  conducting,  driving,  management,  and 
control  of  the  said  locomotive  steam-engine  and  tender,  aid- 
ing and  assisting,  and  that  it  then  and  there  became  and  was 
the  duty  of  the  said  S.  H.  and  of  the  said  W.  W.,  by  virtue 
of  their  said  employment,  not  to  conduct  or  drive,  or  suffer  or 
permit  to  be  conducted  or  driven,  the  said  locomotive  steam- 
engine  and  tender  from  and  off  the  said  side  line  of  railway, 
into,  upon,  or  across  the  said  main  line  of  railway,  in  case 
any  train  or  engine  should  be  then  due  and  about  to  arrive 
at  that  part  of  the  said  main  line  of  railway  where  the  same 
was  joined  by  the  said  side  line  of  railway  aforesaid  ;  yet  the 
said  S.  II.  and  the  said  W.  W.,  well  knowing  the  premises,  and 
well  knowing  that  a  certain  train,  consisting  of  another, loco- 
motive steam-engine,  with  a  certain  other  tender,  and  divers, 
to  wit,  twenty  carriages  attached  thereto  and  drawn  thereby, 


CHAP.  XXVIII.]  HOMICIDE.  275 

was  then  and  there  lawfully  travelling  and  being  propelled  on 
and  along  the  said  main  line  of  railway,  and  was  then  due 
and  about  to  arrive  at  that  part  of  the  said  main  line  of  rail- 
way where  the  same  was  joined  by  the  side  line  of  railway 
aforesaid,  but  disregarding  their  duty  in  that  behalf,  did,  on 
the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
wilfully  and  feloniously,  and  with  great  force  and  violence, 
wilfully  and  in  a  wanton,  negligent,  and  improper  manner, 
contrary  to  their  said  duty  in  that  behalf,  and  while  the  said 
train  was  so  then  and  there  due  and  about  to  arrive  as  afore- 
said, conduct  and  drive,  and  suffer  and  permit  to  be  con- 
ducted and  driven,  the  said  first-mentioned  locomotive  steam- 
engine  and  tender  from  and  off  the  said  side  line  of  railway, 
into,  upon,  and  across  the  said  main  line  of  railway,  and 
thereby  and  by  reason  of  the  said  premises,  and  of  the  several 
negligent  and  improper  conduct  of  the  said  S.  H.  and  of  the 
said  W.  W.,  the  said  train  so  then  travelling  and  being  pro- 
pelled on  and  along  the  said  main  line  of  railway,  did  then 
and  there  unavoidably,  with  great  force  and  violence,  strike, 
run,  and  impinge  against  the  said  first-mentioned  locomotive 
steam-engine ;  and  by  means  of  the  said  several  premises, 
and  of  the  shock  and  concussion  thereby  given  and  communi- 
cated to  the  said   first-mentioned   locomotive  steam-engine, 
the  said  R.  P.,  who  was  then  and  there  standing  and  being 
in  and  upon  the  said  first-mentioned  locomotive  steam-engine, 
was  then  and  there,  with  great  force  and  violence,  pushed, 
forced,  dashed,  driven,  and  jammed  in,  upon,  over,  and  be- 
tween a  certain  part  of  the  said  first-mentioned  locomotive 
steam-engine,  to  wit,  the  hinder  part  thereof,  and  by  means 
of  the  said  pushing,  forcing,  dashing,  driving,  and  jamming, 
then  and  there  were  made  and  inflicted  in  and  upon  the  head, 
to  wit,  in  and  upon  the  right  side  of  the  head  of  the  said  R. 
P.,  divers  mortal  wounds  and  fractures,  and  in  and  upon  the 
body,  to  wit,  in  and  upon  the  back,  sides,  belly,  thighs,  legs, 
and  feet  of  the  said  R.  P.,  divers  mortal  wounds,  bruises,  con- 
tusions,  burns,    and   scalds,    of   which    said    several    mortal 
wounds,  fractures,  bruises,  contusions,  burns,  and  scalds,  the 


276  HOMICIDE.  [chap.  XXVIII. 

said  R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  instantly  died.     And  so  the  jurors,  etc. 

Third  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.,  and  the  said 
W.  W.,  on  the  day  and  year  aforesaid,  with  force  and  arms, 
at  the  parish  of  Richmond  aforesaid,  in  the  county  of  Surrey 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  R.  P.,  feloniously  and  wilfully  did  make  an 
assault,  and  that  the  said  S.  H.  was  then  and  there  con- 
ducting and  driving,  and  then  and  there  had  the  management 
and  control  of  a  certain  locomotive  steam-engine,  to  and  be- 
hind which  a  certain  carriage,  called  a  tender,  was  then  and 
there  attached,  and  which  said  locomotive  steam-engine  and 
tender  were  then  and  there  in  and  upon  a  certain  way,  to  wit, 
a  certain  side  line  of  railway  leading  into  and  upon  a  certain 
main  line  of  railway,  to  wit,  the  Richmond  Railway,  and  that 
the  said  W.  W.  was  then  and  there,  the  said  S.  H.,  in 
and  about  the  said  conducting,  driving,  management,  and 
control  of  the  said  locomotive  steam-engine  and  tender,  aid- 
ing and  assisting ;  and  that  it  then  and  there  became  and  was 
the  duty  of  the  said  S.  H.,  and  of  the  said  W.  W.,  to  use  all 
due  and  proper  caution  in  and  about  the  conducting  and  driv- 
ing the  said  locomotive  steam-engine  and  tender,  from  and 
off  the  said  side  line  of  railway  in,  upon,  or  across  the  said 
main  line  of  railway,  yet  the  said  S.  H.,  and  the  said  W.  W., 
well  knowing  the  premises,  and  not  regarding  their  duty  in 
that  behalf,  did  not,  nor  would  use  all  due  and  proper  caution 
in  and  about  the  conductinsr  and  drivinsr  of  the  said  locomo- 
live  steam-engine  and  tender,  from  and  off  the  said  side  line 
of  railway,  in,  upon,  or  across  the  said  main  line  of  railway ; 
but  on  the  contrary  thereof,  did  then  and  there,  wilfully  and 
feloniously,  and  with  great  force  and  violence,  and  without 
dm:  and  proper  caution,  and  in  a  negligent  and  improper 
luaiiiicr,  and  contrary  to  iheir  said  duty  in  ihat  l)ehair,  con- 
duet  and  (\y'\\('.  \\\{'.  said  loconiotivt^  slcani-engine  and  t(>nder 
from  and  oil"  1h<"  said  side,  line  of  railway,  into,  upon,  and 
across  the   said  main  line  of   railway,   and  into,  upon,  and 


CHAP.  XXVIII.]  HOMICIDE.  277 

against  a  certain  train,  to  wit,  a  train  consisting  of  another 
locomotive  steam-engine,  with  a  certain  other  tender,  and 
divers,  to  wit,  twenty  carriages  attached  thereto,  and  drawn 
thereby,  which  said  train  was  then  and  there  lawfully  travel- 
ling and  being  propelled  on  and  along  the  said  main  line  of 
railway ;  and  that  the  said  S.  H.  and  W.  W.  did  thereby  and 
by  means  of  the  said  several  premises,  and  by  reason  of  the 
shock  and  concussion  thereby  given  and  communicated  to 
the  said  first-mentioned  locomotive  steam-engine,  then  and 
there  wilfully  and  feloniously,  and  with  great  force  and  vio- 
lence, push,  force,  dash,  drive,  and  jam,  and  cause  to  be  pushed, 
forced,  dashed,  driven,  and  jammed  in,  upon,  over,  and  be- 
tween a  certain  part  of  the  said  first-mentioned  locomotive 
steam-engine,  to  wit,  the  hinder  part  thereof,  the  said  R.  P., 
who  was  then  and  there  standing,  and  being  in  and  upon  the 
said  first-mentioned  locomotive  steam-engine,  and  did  then 
and  there,  by  means  of  the  said  pushing,  forcing,  dashing, 
driving,  and  jamming,  wilfully  and  feloniously  inflict,  and 
cause  to  be  inflicted,  in  and  upon  the  head,  to  wit,  in  and 
upon  the  right  side  of  the  head  of  the  said  R.  P.,  divers 
mortal  wounds  and  fractures,  and  in  and  upon  the  body,  to 
wit,  in  and  upon  the  back,  sides,  belly,  thighs,  legs,  and  feet, 
of  the  said  R.  P.,  divers  mortal  wounds,  bruises,  contusions, 
burns,  and  scalds,  of  which  said  several  mortal  wounds, 
fractures,  bruises,  contusions,  burns,  and  scalds,  the  said 
R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  instantly  died.     And  so  the  jurors  aforesaid,  etc. 

Fourth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.,  and  the  said 
W.  W.,  on  the  day  and  year  aforesaid,  with  force  and  arms, 
at  the  parish  of  Richmond  aforesaid,  in  the  county  of  Surrey 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  R.  P.,  feloniously  did  make  an  assault,  and 
that  the  said  S.  H.  was  then  and  there  conducting  and  driv- 
ing, and  then  and  there  had  the  management  and  control  of 
a  cerifein  locomotive  steam-engine,  to  and  behind  which  a 
certain  carriage  called  a  tender,  was  then  and  there  attached, 

24 


278  HOMICIDE.  [chap.  XXVIII. 

and  which  said  locomotive  steam-engine  and  tender  were 
then  and  there  in  and  upon  a  certain  way,  to  wit,  a  certain 
side  line  of  railway,  leading  into  and  upon  a  certain  main 
line  of  railway,  to  wit,  the  Richmond  railway,  and  that  the 
said  W.  W.  was  then  and  there,  the  said  S.  H.,  in  and  about 
the  said  conducting,  driving,  management,  and  control  of  the 
said  locomotive  steam-engine  and  tender,  aiding  and  assisting, 
and  that  it  then  and  there  became  and  was  the  duty  of  the 
said  S.  H.,  and  of  the  said  W.  W.,  to  use  all  due  and  proper 
caution  in  and  about  the  conducting  and  driving  the  said 
locomotive  steam-engine  and  tender  from  and  off  the  said 
side  line  of  railway,  in,  upon,  or  across,  the  said  main  line  of 
railway ;  yet  the  said  S.  H.,  and  the  said  W.  W.,  well  know- 
ing the  premises,  and  not  regarding  their  duty  in  that  behalf, 
did  not,  nor  would  use  all  due  and  proper  caution  in  and 
about  the  conducting  and  driving  of  the  said  locomotive 
steam-engine  and  tender,  from  and  off  the  said  side  line  of 
railway,  in,  upon,  or  across  the  said  main  line  of  railway,  but 
on  the  contrary  thereof,  did  then  and  there  wilfully  and  felo- 
niously, and  with  great  force  and  violence,  and  without  due 
and  proper  caution,  and  in  a  negligent  and  improper  manner, 
and  contrary  to  their  said  duty  in  that  behalf,  conduct  and 
drive  the  said  locomotive  steam-engine  and  tender,  from  and 
off  the  said  side  line  of  railway,  into,  upon,  and  across  the  said 
main  line  of  railway,  and  thereby  and  by  reason  of  the  said 
several  premises,  and  of  the  said  negligent  and  improper  con- 
duct of  the  said  S.  H.,  and  of  the  said  W.  W.,  a  certain 
train,  to  wit,  a  train  consisting  of  a  certain  other  locomotive 
steam-engine,  with  a  certain  other  tender,  and  divers,  to  wit, 
twenty  carriages  attached  thereto,  and  drawn  thereby,  which 
said  train  was  then  and  there  lawfully  travelling  and  being 
propelled  on  and  along  the  said  main'  line  of  railway,  did 
then  and  there  inadvertently,  with  great  force  and  violence, 
strike,  run,  and  ini))inge  upon  and  against  the  said  first-men- 
tioned locomotive  steam-engine,  and  by  means  of  the  said 
several  priMiiiscs,  and  of  the  shock  and  concussion  thereby 
given  and  eonununicated  to  the  said  first-mentioned  locomo- 
tive steam-engine,  tlie  said  R.  P.,  who  was  then  and  there 


CHAP.  XXVIII.]  HOMICIDE.  279 

standing  and  being  in  and  upon  the  said  first-mentioned  loco- 
motive steam-engine,  was  then  and  there  with  great  force  and 
violence  pushed,  forced,  dashed,  driven,  and  jammed  in,  upon, 
against,  over,  and  between  a  certain  part  of  the  said  first- 
mentioned  locomotive  steam-engine,  to  wit,  the  hinder  part 
thereof,  and  by  means  of  the  said  pushing,  forcing,  dashing, 
driving,  and  jamming,  then  and  there  were  made  and  inflicted 
in  and  upon  the  head,  to  wit,  in  and  upon  the  right  side  of 
the  head  of  the  said  R.  P.,  divers  mortal  wounds  and  frac- 
tures, and  in  and  upon  the  body,  to  wit,  in  and  upon  the  back, 
sides,  belly,  thighs,  legs,  and  feet  of  the  said  R.  P.  divers  mor- 
tal wounds,  bruises,  contusions,  burns,  and  scalds,  of  which 
said  several  mortal  wounds,  fractures,  bruises,  contusions, 
burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  the  jurors  aforesaid,  etc. 

Fifth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.,  and  the  said 
W.  W.,  on  the  day  and  year  aforesaid,  with  force  and  arms, 
at  the  parish  of  Richmond  aforesaid,  in  the  county  of  Sur- 
rey aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
in  and  upon  the  said  R.  P.,  feloniously  and  wilfully  did  make 
an  assault ;  and  that  the  said  S.  H.,  and  the  said  W.  W.,  a 
certain  locomotive  steam-engine,  to  and  behind  which  a  cer- 
tain carriage  called  a  tender,  was  then  and  there  attached, 
and  which  said  locomotive  steam-engine  and  tender  were  then 
and  there  being  forced  and  propelled  by  the  power  of  steam 
on  and  along  a  certain  way,  to  wit,  a  railway ;  and  which 
said  locomotive  steam-engine  and  tender,  the  said  S.  H.  was 
then  and  there  managing,  controlling,  conducting,  and  driv- 
ing, in  and  along  the  said  railway,  and  in  the  managing,  con- 
trolling, conducting,  and  driving  whereof,  the  said  W.  W.was 
then  and  there  the  said  S.  H.  aiding  and  assisting,  did  then 
and  there  wilfully  and  feloniously,  by  the  wanton  and  felo- 
nious negligence  of  them  and  each  of  them  respectively,  and 
by  the  wilful  and  felonious  disregard  of  the  duties  incumbent 
upon  them,  and  each  of  them  respectively,  in  that  behalf. 


280  HOMICIDE.  [chap.  XXVIII. 

cause,  occasion,  permit,  and  suffer  to  strike  and  run  into,  upon, 
and  against,  and  to  be  with  great  force  and  violence  forced, 
driven,  and  dashed  into,  upon,  and  against  a  certain  other 
locomotive  steam-engine,  to  which  said  last-mentioned  loco- 
motive steam-engine  a  certain  other  tender  and  divers,  to  wit, 
twenty  carriages,  were  then  and  there  attached,  and  which 
said  last-mentioned  locomotive  steam-engine  and  tender  and 
carriages  were  then  and  there  lawfully  travelling  and  being 
propelled  on  and  along  the  said  railway,  and  that  the  said  S. 
H.,  and  the  said  W.  W.,  did  thereby,  and  by  means  of  the 
said  several  premises,  and  by  reason  of  the  shock  and  con- 
cussion thereby  caused  and  communicated  to  the  said  first- 
mentioned  locomotive  steam-engine  and  tender,  then  and 
there  wilfully  and  feloniously,  and  with  great  force  and  vio- 
lence, push,  force,  dash,  drive,  and  jam,  and  cause  to  be 
pushed,  forced,  dashed,  driven,  and  jammed  in,  upon,  over, 
and  between  a  certain  part  of  the  said  first-mentioned  loco- 
motive steam-engine,  to  wit,  the  hinder  part  thereof,  the  said 
R.  P.,  who  was  then  and  there  standing  and  being  in  and 
upon  the  said  fii'st-mentioned  locomotive  steam-engine,  and 
did  then  and  there,  and  by  means  of  the  said  pushing,  forcing, 
dashing,  driving,  and  jamming,  wilfully  and  feloniously  inflict, 
and  cause  to  be  inflicted,  in  and  upon  the  head,  to  wit,  the 
right  side  of  the  head  of  the  said  R.  P.,  divers  mortal  wounds 
and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and  upon 
the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R.  P., 
divers  mortal  wounds,  contusions,  bruises,  burns,  and  scalds, 
of  which  said  several  wounds,  fractures,  contusions,  bruises, 
burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
wilhin  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  tlie  jurors  aforesaid,  etc. 

Sixth  Count.  —  And  tlie  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.  and  the  said 
W.  W.,  on  th(!  day  and  year  aforesaid,  with  force  and  arms, 
at  the  jiarish  of  llichmond  aforesaid,  in  the  county  of  Surrey 
aforesaid,  :ni(l  wiiliin  tlic  jurisdiclion  of  1  Ik;  said  court,  in  and 
upon  the-   said  U.   P.  feloniously   and  wilfully  did  make  an 


CHAP.  XXVIII.]  HOMICIDE.  281 

assault,  and  that  the  said  S.  H.  and  the  said  W.  W.,  a 
certain  locomotive  steam-engine,  to  and  behind  which  a  cer- 
tain carriage  called  a  tender  was  then  and  there  attached,  and 
which  said  locomotive  steam-engine  and  tender  were  then 
and  there  being  forced  and  propelled  by  the  power  of  steam 
on  and  along  a  certain  way,  to  wit,  a  railway,  and  which  said 
locomotive  steam-engine  and  tender  the  said  S.  H.  was  then 
managing,  controlling,  conducting,  and  driving  in  and  along 
the  said  railway,  and  in  the  managing,  controlling,  conducting, 
and  driving  whereof,  the  said  W.  W.  was  then  and  there  the 
said  S.  H.  aiding  and  assisting,  did  then  and  there  wilfully 
and  feloniously,  and  by  the  wanton  and  felonious  negligence 
of  them  and  each  of  them  respectively,  and  by  the  wilful  and 
felonious  disregard  of  the  duties  incumbent  upon  them  and 
each  of  them  respectively  in  that  behalf,  and  with  great  force 
and  violence,  conduct,  drive,  and  propel,  and  cause  and  permit 
to  be  conducted,  driven,  and  propelled  to,  upon,  along,  and 
across  a  certain  other  part  of  the  railway  aforesaid,  and 
thereby  and  by  reason  of  the  said  several  premises  and  of  the 
said  wilful  and  felonious  negligence  of  the  said  S.  H.,  and  of 
the  said  W.  "W.,  a  certain  train,  to  wit,  a  train  consisting  of 
a  certain  other  locomotive  steam-engine,  with  a  certain  other 
tender,  and  divers,  to  wit,  twenty  carriages  attached  thereto 
and  drawn  thereby,  and  which  said  train  was  then  and 
there  lawfully  travelling  and  being  propelled  on  and  along 
the  said  last-mentioned  part  of  the  said  line  of  railway, 
did  then  and  there  unavoidably  and  with  great  force  and 
violence  strike,  drive,  dash,  and  impinge  upon  and  against 
the  said  first-mentioned  locomotive  steam-engine ;  and  by 
means  of  the  said  several  premises  and  of  the  shock  and 
concussion  thereby  given  and  communicated  to  the  said 
first-mentioned  locomotive  steam-engine,  the  said  R.  P.,  who 
then  and  there  was  standing  and  being  in  and  upon  the  said 
first-mentioned  locomotive  steam-engine,  was  then  and  there 
with  great  force  and  violence  pushed,  forced,  dashed,  driven, 
and  jammed  in,  upon,  over,  and  between  a  certain  part  of 
the  said  first-mentioned  locomotive  steam-engine,  to  wit,  the 
hinder  part  thereof,  and  by  means  of  the  said  pushing,  forc- 

24* 


282  HOMICIDE.  [chap.  XXVIII. 

ing,  dashing,  driving,  and  jamming,  then  and  there  were  in- 
flicted in  and  upon  the  head,  to  wit,  in  and  upon  the  right 
side  of  the  head  of  the  said  R.  P.,  divers  mortal  wounds  and 
fractures,  and  in  and  upon  the  body,  to  wit,  in  and  upon  the 
back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R.  P.,  divers 
mortal  wounds,  bruises,  contusions,  burns,  and  scalds,  of  which 
said  mortal  wounds,  fractures,  bruises,  contusions,  burns,  and 
scalds,  the  said  R.  P.,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  instantly  died.  And  so  the  jurors,  etc. 
Seventh  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  S.  H.  and  the  said 
W.  W.,  on  the  day  and  year  aforesaid,  with  force  and  arms 
at  the  parish  of  Richmond  aforesaid,  in  the  county  of  Surrey 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  R.  P.,  feloniously  and  wilfully  did  make  an  as- 
sault, and  that  the  said  S.  H.  and  W.  W.,  a  certain  locomo- 
tive steam-engine,  to  and  behind  which  a  certain  carriage 
called  a  tender  was  then  and  there  attached,  and  which  said 
locomotive  steam-engine  and  tender  were  then  and  there  the 
property  of  a  certain  corporate  body,  to  wit,  the  London  and 
South-Western  Railway  Company,  and  were  then  and  there 
lawfully  standing  and  being  in  and  upon  a  certain  railway, 
to  wit,  at  and  near  a  certain  station  belonging  to  the  said 
railway,  did  then  and  there  wilfully  and  feloniously  and  with- 
out any  lawful  authority  in  that  behalf,  and  with  great  force 
and  violence,  conduct,  drive,  and  propel,  and  cause,  permit,  and 
suffer  to  be  conducted,  driven,  and  propelled  away  from  the 
said  station  along,  to,  upon,  and  across  a  certain  other  part  of 
the  railway  aforesaid,  and  thereby  and  by  reason  of  the  said 
several  premises  a  certain  train,  to  wil,  a  train  consisting  of  a 
certain  other  locomotive  steam-engine,  with  a  certain  other 
tender,  and  divers,  to  wit,  twenty  carriages  attached  thereto 
and  drawn  thereby,  and  which  said  train  was  then  and  there 
lawfully  travelling  and  being  ])ro})elled  on  and  along  the  line 
of  the  said  railway,  did  then  and  there  unavoidably  and  wi'th 
great  force  and  violence  strike,  dash,  drive,  and  impinge  upon 
and  against  the  said  first-mentioned  locomotive  steam-engine, 


CHAP.  XXVIir.]  HOMICIDE.  283 

and  by  means  of  the  said  several  premises,  and  of  the  shock 
and  concussion  thereby  given  and  communicated  to  the  said 
first-mentioned  locomotive  steam-engine,  the  said  R.  P.,  who 
then  and  there  was  standing  and  being  in  and  upon  the  said 
first-mentioned  locomotive  steam-engine,  was  then  and  there 
with  great  force  and  violence  pushed,  forced,  dashed,  driven, 
and  jammed  in,  upon,  over,  and  between  a  certain  part  of  the 
said  first-mentioned  locomotive  steam-engine,  to  wit,  the 
hinder  part  thereof,  and  by  means  of  the  said  pushing,  forc- 
ing, dashing,  driving,  and  jamming,  then  and  there  were  made 
and  inflicted  in  and  upon  the  head,  to  wit,  in  and  upon  the 
right  side  of  the  head  of  the  said  R,  P.,  divers  mortal  wounds 
and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and  upon 
the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R.  P., 
divers  mortal  wounds,  bruises,  contusions,  burns,  and  scalds, 
of  which  said  several  mortal  wounds,  fractures,  bruises,  con- 
tusions, burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  th-e  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  com't,  instantly  died.  And 
so  the  jurors,  etc. 


5.  For  manslaughter  against  the  keeper  of  an  asylum  for 
pauper  children,  for  not  supplying  one  of  them  loith 
proper  food  and  lodging,  whereby  the  child  died} 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore 
and  during  all  the  days  and  times  hereinafter  in  this  count 
mentioned,  James  Andrews  was  a  poor,  indigent,  and  desti- 
tute infant  child  of  very  tender  age,  to  wit,  of  the  age  of  six 
years,  and  unable  to  provide  himself  with  necessary  food, 
shelter,  or  clothing,  or  any  of  the  necessaries  of  life  ;  and  that 
heretofore,  to  wit,  on  the  twenty-eighth  day  of  October  in  the 

year  of  our  Lord ,  Peter  Bartholomew  Drouet,  late  of  the 

parish  of  Tooting,  in  the  county  of  Surrey,  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  gentleman,  being 


1  3  Cox,  C.  C.  Appendix,  p.  Ixxv. 


284  HOMICIDE.  [chap.  XXVIII. 

the  keeper  of  a  certain  asylum  for  the  reception  of  poor,  des- 
titute, and  indigent  children,  at  the  parish  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  to  wit,  called  and 
known  by  the  name  of  Surrey  Hall,  at  the  request  and  wdth 
the  approbation  of  the  guardians  of  the  poor  of  the  Holborn 
Union,  in  the  county  of  Middlesex,  who  then  had  the  charge 
and  custody  of  the  said  J.  A.,  and  then  under  the  laws  of  this 
realm  relating  to  the  relief  of  the  poor,  were  charged  with  the 
relief  and  support  of  the  said  J.  A.  within  their  said  union,  at 
his  request  received,  and  had  the  said  J.  A.  in  the  charge  and 
custody  of  the  said  P.  B.  D.,  by  him  to  be  provided  with  good 
and  proper  abode,  shelter,  and  lodging,  and  all  the  necessary 
sleeping  accommodation,  meat,  drink,  food,  and  clothing,  for 
«and  on  behalf  of  the  said  guardians,  for  reward  to  the  said 
P.  B.  D.  in  that  behalf.  And  the  jurors  further  present,  that 
thenceforth  and  on  and  from  the  said  twenty-eighth  day  of 

October  in  the  year  of  our  Lord ,  and  upon  and  during 

all  the  days  and  times  between  that  day  and  the  fifth  day  of 

January  in  the  year  of  our  Lord ,  the  said  P.  B.  D.  kept 

and  detained  the  said  J.  A.,  and  the  said  J.  A.  continued  and 
remained,  and  was  under  the  charge,  care,  dominion,  govern- 
ment, custody,  and  control  of  the  said  P.  B.  D.  in  the  said 
asylum,  to  wit,  at  the  parish  aforesaid  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  and  the  said  J.  A. 
was,  during  all  the  several  days  and  times  aforesaid,  wholly 
subject  to  and  dependent  upon  the  said  P.  B.  D.  for  such 
abode,  shelter,  lodging,  sleeping  accommodation,  meat,  drink, 
food,  and  clothing  as  aforesaid,  and  was  unable  to  obtain  the 
same,  or  any  of  them  from  any  other  source,  or  from  any  other 
person  or  persons  whomsoever.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  thereupon, 
to  wit,  upon  the  said  twenty-eighth  day  of  October  in  the 

year  of  our  Lord  ,  and  thenceforth  during  all  the  days 

and  times  in  this  count  aforesaid,  it  became  and  was  the  duty 
of  the  said  P.  B.  D.  to  furnish,  provide,  and  supply  the  said 
J.  A.  with  good  and  wholesome  food,  meat,  and  drink,  in 
su(;li  sufficient  quantities  as  should  be  necessary  for  the 
healthy  siii)p()rt,  nourishment,  and  sustenance  of  the  body  of 


CHAP,  xxviil]  homicide.  2g5 

the  said  J.  A. ;  and  also  to  furnish,  provide,  and  supply  the 
said  J.  A.  with  such  proper,  suitable,  and  wholesome  lodging, 
shelter,  and  abode,  as  should,  upon  and  during  all  the  several 
days  and  times  aforesaid,  be  needful  for  the  said  J.  A.,  and 
be  necessary  to  preserve  him  in  a  good  and  sound  state  of 
bodily  health,  and  free  from  sickness,  weakness,  and  disorder; 
and  also  during  all  the  days  and  times  aforesaid,  to  furnish, 
provide,  and  supply  the  said  J.  A.  with  such  healthy,  whole- 
some, and  proper  bedding  and  sleeping  accommodation  as 
should  be  necessary  to  enable  the  said  J.  A.  to  enjoy  a  due 
and  proper  quantity  of  wholesome,  healthy,  and  refreshing 
rest  and  sleep ;  and  also  to  furnish,  provide,  and  supply  the 
said  J.  A.  with  a  sufficient  quantity  of  warm  and  wholesome 
clothing,  for  the  protection  of  the  body  of  the  said  J.  A.  from 
the  cold,  damp,  and  inclemency  of  the  weather ;  all  of  which 
said  several  premises  the  said  P.  B.  D.,  upon  and  during  all 
the  several  days  and  times  in  this  count  mentioned,  well 
knew.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  P.  B.  D.,  on  the  several  days 
aforesaid,  with  force  and  arms,  at  the  parish  of  Tooting  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  in  and  upon  the  said  J.  A.,  feloniously  did  make  divers 
assaults ;  and  that  the  said  P.  B.  D.,  not  regarding  his  duty 
as  aforesaid,  upon  all  and  every  the  days  aforesaid,  and  dur- 
ing all  the  said  times,  whilst  the  said  .T.  A.  remained  and  con- 
tinued under  the  care,  charge,  dominion,  government,  cus- 
tody, and  control  of  the  said  P.  B.  D.  in  the  said  asylum,  at 
the  parish  of  Tooting  aforesaid,  and  within  the  jurisdiction 
of  the  said  Central  Criminal  Court,  feloniously  did  omit,  neg- 
lect, and  refuse  to  furnish,  provide,  or  supply  the  said  J.  A. 
with  good  and  wholesome  food,  meat,  and  drink,  in  such  suf- 
ficient quantities  as  were  upon  and  during  all  and  every  of 
those  days  respectively,  and  during  all  the  time  aforesaid, 
necessary  for  the  healthy  support,  nourishment,  and  suste- 
nance of  the  body  of  the  said  J.  A.,  according  to  the  duty  of 
the  said  P.  B.  D.  in  that  behalf,  and  on  the  contrary  thereof, 
upon  and  during  all  and  every  the  days  aforesaid,  and  during 
all  the  time  aforesaid,  at  the  parish  of  Tooting  aforesaid,  and 


286  HOMICIDE.  [chap,  xxvin. 

within  the  jurisdiction  of  the  said  Central  Criminal  Court, 
feloniously,  and  without  any  lawful  excuse  whatsoever,  did 
furnish,  provide,  and  supply  the  said  J.  A.  with  food,  meat, 
and  drink  in  very  insufficient  and  inadequate  quantities,  and 
in  no  sufficient  and  adequate  quantity  or  quantities  whatso- 
ever, for  such  support,  nourishment,  and  sustenance  of  the 
body  of  the  said  J.  A.  as  aforesaid ;  and  that  the  said  P.  B.  D., 
not  regarding  his  duty  as  aforesaid,  upon  and  during  all  and 
every  of  the  days  aforesaid,  and  during  all  the  said  time 
whilst  the  said  J.  A.  remained  and  continued  under  such 
charge,  care,  dominion,  government,  custody,  and  control  as 
aforesaid,  in  the  said  asylum  at  the  parish  of  Tooting  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  feloniously  did  omit,  neglect,  and  refuse  to  furnish, 
provide,  or  supply  the  said  J.  A.  with  such  proper,  suitable, 
and  wholesome  lodging,  shelter,  and  abode  as  was,  upon  and 
during  all  the  several  days  aforesaid,  and  during  all  the  time 
aforesaid,  needful  for  the  said  J.  A.,  and  necessary  to  preserve 
him  in  a  good  and  sound  state  of  bodily  health,  and  free 
from  sickness,  weakness,  and  disorder,  and  as,  according  to 
the  said  duty  of  the  said  P.  B.  D.,  he  ought  to  have  done,  and 
on  the  contrary  thereof,  the  said  P.  B.  D.,  at  the  parish  of 
Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  upon  and  during  all  the  several  days 
aforesaid,  and  during  all  the  time  aforesaid,  knowingly,  feloni- 
ously, and  contrary  to  his  duty  in  that  behalf,  did  keep  the 
said  J.  A.,  and  force,  compel,  and  oblige  the  said  J.  A.  to  be 
and  remain  in  divers  ill-ventilated  and  unwholesome  rooms, 
inhabited  by  and  overcrowded  with  an  excessive  and  injuri- 
ous number  of  other  persons  in  the  said  asylum,  and  feloni- 
ously did  expose  the  said  J.  A.,  and  force  and  compel  the  said 
J.  A.  to  be  and  remain  exposed  for  divers  long  spaces  of  time, 
on  each  of  the  days  aforesaid,  to  divers  fetid,  injurious, 
noxious,  unwholesome,  and  peslilential  (ixhalalions  and  vapors 
in,  near,  to,  around,  and  about  the  said  asylum  then  arising 
and  existing;  and  that  Ihe  said  P.  B.  D.,  not  regarding  his 
duty  as  aforesaid,  upon  and  during  all  and  every  the  days 
aforesaid,  and  during  all  the  said  time  whilst  the  said  J.  A. 


CHAP.  XXVIII.]  HOMICIDE.  287 

remained  and  continued  under  such  charge,  care,  dominion, 
government,  custody,  and  control  as  aforesaid,  in  the  said 
asylum,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  feloniously  did 
omit,  neglect,  and  refuse  to  furnish,  provide,  and  supply  the 
said  J.  A.  with  such  healthy,  wholesome,  and  proper  bedding 
and  sleeping  accommodation  as  was  necessary  to  enable  the 
said  J.  A.  on  all  and  every  the  said  several  days  aforesaid,  to 
enjoy  a  due  quantity  of  wholesome,  healthy,  and  refreshing 
rest  and  sleep,  and  as,  according  to  the  duty  of  the  said  P. 
B.  D.,  he  ought  to  have  done,  and  on  the  contrary  thereof, 
upon  divers  nights  during  all  the  time  aforesaid,  at  the  parish 
of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  feloniously  and  knowingly  did  force, 
oblige,  and  compel  the  said  J.  A.  to  lie  and  be  in  a  certain 
ill-ventilated  and  unwholesome  room,  then  overcrowded  with 
an  excessive  and  injurious  number  of  other  persons  in  the 
said  asylum,  and  to  be  and  remain,  for  divers  long  spaces  of 
time  on  each  of  the  nights  aforesaid,  in  divers  fetid,  injurious, 
noxious,  unwholesome,  and  pestilential  vapors  and  exhala- 
tions in  the  said  room  arising  and  existing,  and  also  to  lie  and 
be  in  a  certain  small  bed  in  the  said  room,  together  with  two 
other  persons,  to  wit,  Joseph  Andrews  and  William  Derby- 
shire, whereby  the  said  bed  became  and  was,  on  all  and  every 
of  the  said  nights,  rendered  unwholesome  and  injurious  to 
the  said  J.  A.,  and  totally  unfit  for  and  incapable  of  affording 
to  the  said  J.  A.  such  wholesome,  healthy,  and  refreshing 
sleep  as  aforesaid ;  and  that  the  said  P.  B.  D.,  not  regarding 
his  duty  as  aforesaid,  upon  and  during  all  and  every  the  days 
aforesaid,  and  during  all  the  said  time  whilst  the  said  J.  A. 
remained  and  continijed  under  such  charge,  care,  dominion, 
government,  custody,  and  control  as  aforesaid,  in  the  said 
asylum,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  feloniously  did  omit,  neglect, 
and  refuse  to  furnish,  provide,  or  supply  the  said  J.  A.  with 
any  sufficient  quantity  of  warm  and  wholesome  clothing,  or 
with  a  sufficient  quantity  of  any  clothing  whatever  for  the 
protection  of  the  body  of  the  said  J.  A.  from  the  cold,  damp, 


288  HOMICIDE.  [chap.  XXVIII. 

and  inclemency  of  the  weather,  and  as,  according  to  the  duty 
of  the  said  P.  B.  D.,  he  ought  to  have  done,  and  on  the  con- 
trary thereof,  during  divers  cold,  wet,  and  inclement  days  dur- 
ing the  time  aforesaid,  at  the  parish  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  feloniously, 
and  contrary  to  his  duty  in  that  behalf,  left  the  said  J.  A.  ex- 
posed, and  then  and  there  suffered  and  permitted  the  said  J.  A. 
to  remain  exposed,  for  divers  long  spaces  of  time,  to  the  cold, 
damp,  and  inclemency  of  the  weather,  etc.,  without  any  suffi- 
cient or  adequate  quantity  of  clothing  or  covering  for  his  body, 
and  with  a  totally  inadequate  and  insufficient  quantity  of  cloth- 
ing and  covering  for  the  body  of  the  said  J.  A.,  to  protect  him 
from  the  severity  and  inclemency  of  the  weather.  By  reason 
and  means  of  which  said  several  felonious  acts,  defaults,  and 
omissions  of  the  said  P.  B,  D.  hereinbefore  alleged,  the  said  J.  A. 
afterwards,  on  the  said  fifth  day  of  January  in  the  year  of  our 

Lord ,  at  the  parish  of  Tooting  aforesaid,  and  within  the 

jurisdiction  of  the  said  court,  became  and  was,  and  the  said 
P.  B.  D.  did  thereby  then  and  there  feloniously  cause  and  occa- 
sion the  said  J.  A.  to  become  and  be  mortally  sick,  weak,  dis- 
eased, disordered,  and  distempered  in  his  body.  Of  which  said 
mortal  sickness,  weakness,  disease,  disorder,  and  distemper,  the 
said   J.    A.,   on   and   from  the  said   last-mentioned    day   in 

the  year  of  our  Lord ,  until  the  sixth  day  of  January  in 

the  same  year,  as  well  at  the  parish  aforesaid  and  within  the 
jurisdiction  of  the  said  court,  as  at  the  parish  of  Saint  Pan- 
eras,  in  the  county  of  Middlesex,  and  within  the  jurisdiction 
of  the  said  court,  did  languish,  and  languishing  did  live,  and 
then  on  the  said  last-mentioned  day,  at  the  parish  last  afore- 
said, in  the  county  last  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  of  the  mortal  sickness,  weakness,  disease, 
disorder,  and  distemper  aforesaid,  did  die.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  P. 
B.  D.,  the  said  J.  A.,  in  manner  and  form  aforesaid,  feloni- 
ously did  liill  and  slay;  against  the  peace,  etc. 

{Second  Coiinl. —  The  same  as  the  first,  except  that  it 
charged  the  acts  of  omission  only. 

Third  Count.  —  'J'lic  sanu;  as  the  first,  but  charging  acts  of 
commission  only. 


CHAP.  XXVIII.]  HOMICIDE.  289 

Fourth  Count.  —  The  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore  and  during  all  the 
days  and  times  hereinafter  in  this  count  mentioned,  J.  A. 
hereinafter  in  this  count  mentioned,  was  a  poor,  indigent,  and 
destitute  infant  child  of  a  tender  age,  to  wit,  of  the  age  of 
six  years,  and  unable  to  provide  himself  with  necessary  food, 
shelter,  or  clothing,  or  any  of  the  necessaries  of  life,  and  that 
heretofore,  to  wit,  on  the  said  twenty-eighth  day  of  October, 

in  the  year  of  our  Lord  ,  the  said   P.  B.  D.  being  the 

keeper  of  the  said  asylum,  in  the  first  count  of  this  indict- 
ment mentioned,  to  wit,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  voluntarily 
received  the  said  J.  A.  into  the  charge  and  custody  of  the 
said  P.  B.  D.,  and  the  said  P.  B.  D.  thenceforth  and  on  and 
from  the  said  twenty-eighth  day  of  October,  and  upon  and 
during  all  the  days  and  times  between  that  day  and  the  fifth 
day  of  January,  in  the  year  of  our  Lord  ,  kept  and  de- 
tained the  said  J.  A.,  and  the  said  J.  A.  continued,  remained, 
and  was  under  the  care,  charge,  dominion,  government,  cus- 
tody, and  control  of  the  said  P.  B.  D.,  in  the  said  asylum,  to 
wit,  at  the  parish  of  Tooting  aforesaid,  and  within  the  juris- 
diction of  the  said  Central  Criminal  Court,  and  the  said  J. 

A.  was,  during  all  the  several  days  and  times  in  this  count 
aforesaid,  wholly  subject  to  and  depended  upon  the  said  P. 

B.  D.  for  abode,  shelter,  lodging,  sleeping  accommodation, 
meat,  drink,  food,  and  clothing,  and  was  unable  to  obtain  the 
same,  or  any  of  them,  from  any  other  source  or  from  any 
other  person  or  persons  whomsoever.  And  the  jurors  afore- 
said do  further  present,  that  the  said  P.  B.  D.,  on  the  several 
days,  in  this  count  aforesaid,  at  the  parish  of  Tooting,  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  in  and  upon  the  said  J.  A.,  feloniously  did  make  divers 
assaults,  and  that  the  said  P.  B.  D.,  upon  and  during  all  and 
every  the  days  in  this  count  aforesaid,  and  during  all  the  said 
time  whilst  the  said  J.  A.  remained  and  continued  under  the 
care,  charge,  dominion,  government,  custody,  and  control  of 
the  said  P.  B.  D.,  in  the  said  asylum,  as  in  this  count  men- 
tioned, at  the  parish  of  Tooting  aforesaid,  and  within  the 

25 


290  HOMICIDE.  [chap.  XXVIII. 

jurisdiction  of  the  said  Central  Criminal  Court,  feloniously 
did  omit,  neglect,  and  refuse  to  furnish,  provide,  or  supply  the 
said  J.  A.  with  meat  and  drink  in  suthcient  quantities  for  the 
support,  nourishment,  and  sustenance  of  the  body  of  the  said 
J.  A.,  according  to  the  duty  of  the  said  P.  B.  D.,  in  that  be- 
half; but  on  the  contrary  thereof,  upon  and  during  all  and 
every  the  days  in  this  count  aforesaid,  and  during  all  the  time 
in  this  count  aforesaid,  at  the  parish  of  Tooting  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  feloniously  and  with- 
out any  lawful  excuse  whatsoever,  did  furnish,  provide,  and 
supply  the  said  J.  A.  with  food,  meat,  and  drink  in  very  insuf- 
ficient and  inadequate  quantities,  and  in  no  sufficient  and 
adequate  quantity  whatsoever  for  such  support,  nourishment, 
and  sustenance  of  the  body  of  the  said  J.  A.,  as  in  this  count 
aforesaid,  and  that  the  said  P.  B.  D.,  upon  and  during  all  and 
every  the  days  in  this  count  aforesaid,  and  during  all  the  said 
time  whilst  the  said  J.  A.  remained  and  continued  under  such 
charge,  care,  dominion,  government,  custody,  and  control,  as 
in  this  count  aforesaid,  in  the  said  asylum,  at  the  parish  of 
Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court,  feloniously  did  omit,  neglect,  and  re- 
fuse to  furnish,  provide,  or  supply  the  said  J.  A.  with  such 
proper  and  suitable  lodging,  shelter,  and  abode,  as  was,  upon 
all  and  every  the  days  in  this  count  aforesiaid,  and  during  all 
the  said  last-mentioned  time,  needful  for  the  said  J.  A.  and 
necessary  to  preserve  him  in  a  good  state  of  bodily  health, 
according  to  his  duty  in  that  behalf,  but  on  the  contrary 
thereof,  the  said  P.  B.  D.,  upon  all  the  several  days  and  times 
in  this  count  aforesaid,  at  the  parish  of  Tooting"  aforesaid, 
and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  knowingly  and  feloniously  did  force,  compel,  and  oblige 
the  said  J.  A.  to  be  and  remain  for  divers  long  spaces  of  time, 
in  divers  ill-ventilated  and  unwholesome  rooms  and  apart- 
ments, llicn  overcrowded  with  an  excessive  and  injurious 
number  of  other  persons  in  the  said  asylum,  and  feloniously 
did  expose  the  said  J.  A.,  and  force,  oblige,  and  compel  the 
said  .1.  A.  1()  be  and  remain  exposed  for  divers  long  spaces  of 
time  to  divers  fetid,  injurious,  noxious,  unwholesome,  and  pes- 


CHAP.  XXVIII.]  HOMICIDE.  291 

tilential  vapors  and  exhalations  in,  near,  to,  around,  and  about 
the  said  asylum,  then  arising  and  existing ;  and  that  the  said 
P.  B.  D.,  upon  and  during  all  and  every  the  days  in  this  count 
aforesaid,  during  all  the  time  whilst  the  said  J.  A.  remained 
and  continued  under  such  charge,  care,  dominion,  government, 
custody,  and  control  of  the  said  P.  B.  D.,  as  in  this  count 
aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within 
the  jurisdiction  of  the  said  Central  Criminal  Court,  felo- 
niously did  omit,  neglect,  and  refuse  to  furnish,  provide, 
or  supply  the  said  J.  A.  with  such  bedding  and  sleep- 
ing accommodation  as  was  necessary  to  enable  the  said 
J.  A.,  on  all  and  every  the  several  days  in  this  count  afore- 
said, to  enjoy  a  due  quantity  of  wholesome,  healthy,  and 
refreshing  rest  and  sleep,  according  to  the  duty  of  the  said  P. 
B.  D.  in  that  behalf;  but  on  the  contrary  thereof,  upon  divers 
nights  during  the  time  in  this  count  aforesaid,  at  the  parish  of 
Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  feloniously  and  knowingly  did  force,  oblige,  and  com- 
pel the  said  J.  A.  to  lie  and  be  in  a  certain  ill-ventilated  and 
unwholesome  room,  then  overcrowded  with  an  excessive  and 
injurious  number  of  other  persons,  and  to  be  and  remain  for 
divers  long  spaces  of  time  in  divers  fetid,  injurious,  noxious, 
unwholesome,  and  pestilential  vapors  and  exhalations  in  the 
said  room  then  arising  and  existing,  and  also  to  lie  and  be  in 
a  certain  small  bed  in  the  said  room,  together  with  two  other 
persons,  to  wit,  J.  A.  and  W.  D.,  whereby  the  said  bed  be- 
came and  was  on  all  and  every  of  the  said  nights  totally  un- 
fit for  and  incapable  of  affording  the  said  J.  A.  any  whole- 
some, healthy,  or  refreshing  sleep  whatsoever,  and  that  the 
said  P.  B.  D.,  not  regarding  his  duty  in  that  behalf,  upon  all 
and  every  the  days  in  this  count  aforesaid,  and  during  all  the 
said  time  whilst  the  said  J.  A.  remained  and  continued  under 
such  charge,  care,  dominion,  government,  custody,  and  con- 
trol, as  in  this  count  aforesaid,  at  the  parish  of  Tooting  afore- 
said, and  within  the  jurisdiction  of  the  said  Central  Criminal 
Court,  feloniously  did  omit,  neglect,  and  refuse  to  furnish,  pro- 
vide, or  supply  the  said  J.  A.  with  a  sufficient  quantity  of  any 
clothing  or  covering  whatsoever,  for  the  protection  of  the 
body  of  the  said  J.  A.  from  the  cold,  damp,  and  inclemency  of 


292  HOMICIDE.  [chap.  XXVIII. 

the  weather,  according  to  the  duty  of  the  said  P.  B.  D.  in 
that  behalf,  but  on  the  contrary  thereof,  during  divers  of  the 
said  days,  in  this  count  before  mentioned,  which  were  damp, 
cold,  and  inclement,  at  the  parish  of  Tooting  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  feloniously  and  con- 
trary to  his  duty  in  that  behalf,  left  the  said  J.  A.  exposed, 
and  then  and  there  suffered  and  permitted  the  said  J.  A.  to  be 
and  remain  exposed  for  divers  long  spaces  of  time  without 
any  sufficient  or  adequate  quantity  of  clothing  or  covering 
for  his  body,  but  with  a  totally  inadequate  and  insufficient 
quantity  of  clothing  and  covering  for  the  body  of  the  said  J. 
A.,  to  protect  him  from  the  severity  and  inclemency  of  the 
weather,  by  reason  and  means  of  which  said  several  felonious 
acts,  defaults,  and  omissions  of  the  said  P.  B.  D.  in  this  count 
before  alleged,  the  said  J.  A.  afterwards,  to  wit,  on  the  fifth 

day  of  January  in  the  year  of  our   Lord, ,  at  the  parish 

of  Tooting  aforesaid,  in  the  county  of  Surrey  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  became  and  was,  and 
the  said  P.  B.  D.  did  thereby  then  and  there  feloniously  cause 
and  occasion  the  said  J.  A.  to  become  and  be  mortally  sick, 
weak,  diseased,  disordered,  and  distempered  in  his  body.  Of 
which  said  last-meiitioned  mortal  sickness,  weakness,  disease, 
disorder,  and  distemper,  the  said  J.  A.,  on  and  from  the  said 
last-mentioned  day  until  the  sixth  day  of  January,  in  the 

year  of  our  Lord  ,  as  well  at  the  parish  of  Tooting 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  as  at 
the  parish  of  Saint  Pancras,  in  the  county  of  Middlesex  and 
within  the  jurisdiction  of  the  said  Central  Criminal  Court, 
did  languish,  and  languishing  did  live,  and  then  on  the  said 

last-mentioned  day,  in  the  year  of  our  Lord  ,  aforesaid, 

at  the  parish  last  aforesaid,  in  tlie  county  of  Middlesex  afore- 
said, and  within  the  jiu-isdiction  of  tiie  said  Central  Criminal 
Court,  of  the  said  last-mentioned  mortal  sickness,  weakness, 
disease,  disorder,  and  distemjx'r  did  die;  and  so  the  jurors 
aforesaid,  upon  thcur  oath  aforesaid,  do  say  that  the  said  P. 
B.  D.,  the  said  J.  A.,  in  )iianncr  and  form  in  this  count  men- 
tioned, feloniously  did  Ivill  and  slay  against  the  peace,  etc. 

Fifth  Count.  —  Same   as  the  fourth,  except  that  it  charged 
acts  of  omission  only. 


CHAP.  XXVIII.]  HOMICIDE.  293 

Sixth  Count.  —  Same  as  the  fourth,  but  charging  acts  of 
commission  only. 

Seventh  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore,  to  wit,  on  all  the 
days  and  times  hereinafter  in  this  count  mentioned,  J.  A. 
hereinafter  in  this  count  mentioned,  was  a  poor,  indigent,  and 
destitute  infant  child,  of  very  tender  age,  to  wit,  of  the  age 
of  six  years,  and  was  totally  unable  to  provide  for  or  take 
care  of  himself,  and  during  all  the  days  and  times  in  this 
count  mentioned,  was  in  a  sick,  feeble,  and  disordered  state 
of  health,  and  required  for  the  purpose  of  enabling  him  to 
recover  bodily  health  and  strength,  to  be  kept  in  a  pure  and 
healthy  atmosphere,  and  some  airy  and  well  ventilated  place 
or  places  ;  and  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  on  and  from  the  second  day  of  Janu- 
ary, in  the  year  of  our  Lord  ,  until  the  fifth  day  of  the 

same  month,  the  said  J.  A.  was  in  and  under  the  care,  charge, 
dominion,  government,  control,  and  keeping  of  the  said  P.  B. 
D.,  in  the  said  asylum,  in  the  first  count  of  this  indictment 
mentioned,  for  reward  to  the  said  P.  B.  D.  in  that  behalf,  and 
that  during  all  the  time  the  said  J.  A.  remained  under  such 
charge,  care,  dominion,  government,  custody,  and  control  as 
in  this  count  aforesaid,  it  was  the  duty  of  the  said  P.  B.  D. 
to  furnish  and  provide  the  said  J.  A.  with  such  healthy  and 
wholesome  shelter,  lodging,  and  sleeping  accommodation,  as 
should  be  necessary  to  enable  the  said  J.  A.  to  recover  his 
bodily  health  and  strength.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  P.  B.  D., 
upon  the  said  second  day  of  January,  in  the  year  of  our 

Lord  ,  at  the  parish  of  Tooting  aforesaid,  and  within 

the  jurisdiction  of  the  said  court,  in  and  upon  the  said  J.  A., 
feloniously  did  make  an  assault ;  and  the  said  P.  B.  D.,  then 
and  there,  and  upon  all  the  days  in  this  count  before-men- 
tioned, and  during  all  the  time  whilst  the  said  J.  A.  was  so 
under  the  care,  charge,  dominion,  government,  control,  and 
keeping  of  the  said  P.  B.  D.,  as  in  this  count  aforesaid,  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  feloniously  and  contrary  to  his  duty  in  that 

25* 


294  HOMICIDE.  [chap.  XXVIII. 

behalf,  did  keep,  confine,  and  detain  the  said  J.  A.  in  divers 
close,  confined,  and  ill-ventilated  rooms  in  the  said  asylum, 
and  which,  dming  all  the  time  last  aforesaid,  were  rendered 
and  were  impure,  unhealthy,  unwholesome,  and  unfit  for  the 
said  J.  A.  to  inhabit,  by  reason  of  their  being  overcrowded 
with  a  large,  excessive,  and  injurious  number  of  other  persons, 
and  also  during  divers  nights  during  the  time  last  aforesaid, 
feloniously  did  force,  compel,  and  obhge  the  said  J.  A.  to  lie, 
remain,  and  be  in  a  certain  close  and  confined  and  ill-venti- 
lated bedroom,  which  also  was  on  all  the  said  nights  impure, 
unwholesome,  and  unhealthy,  by  reason  of  divers  impure, 
injurious,  noxious,  and  pestilential  vapors  and  exhalations  in 
the  said  last-mentioned  bedroom,  then  arising,  existing,  and 
being,  by  reason  and  by  means  of  which  said  several  feloni- 
ous acts  and  defaults  of  the  said  P.  B.  D.,  in  this  count  men- 
tioned, the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day  of 
January,  in  the  year  of  our  Lord  ,  at  the  parish  of  Toot- 
ing aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within 
the  jurisdiction  of  the  said  Central  Criminal  Court,  became 
and  was  mortally  sick,  weak,  diseased,  disordered,  and  dis- 
tempered in  his  body,  of  which  said  last-mentioned  mortal 
sickness,  weakness,  disease,  disorder,  and  distemper,  the  said 
J.  A.,  on  and  from  the  day  last  aforesaid,  until  the  sixth  day 
of  January  in  the  same  year,  as  well  at  the  parish  of  Tooting 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  as  at  the  parish  of  Saint  Pancras,  in  the 
county  of  Middlesex  aforesaid,  and  within  the  jurisdiction  of 
the  said  Central  Criminal  Court,  did  languish,  and  languish- 
ing did  live,  and  then  on  the  said  sixth  day  of  January,  in 

the  year  of  our  Lord  ,  at  the  parish  last  aforesaid,  and 

williin  tile  jurisdiction  of  the  said  court,  of  the  said  last-men- 
tioiicd  mortal  sickness,  weakness,  disease,  disorder,  and  dis- 
temper, did  die.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  say,  that  the  said  P.  B.  D.,  the  said  J.  A.,  in 
manner  and  form  in  this  count  aforesaid,  feloniously  did  kill 
and  slay,  against  the  peace,  etc. 

I'jig-htk  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  fmllicr  present,  that  heretofore  and  at  the  time 


CHAP.  XXVIII.]  HOMICIDE.  295 

of  committing  the  offence  by  the  said  P.  B.  D.,  and  during  all 
the  times  hereinafter  mentioned,  J.  A.,  hereinafter  in  this 
count  mentioned,  was  a  poor,  indigent,  and  destitute  child  of 
a  tender  age,  to  wit,  of  the  age  of  six  years,  and  totally 
unable  to  support,  provide  for,  and  take  care  of  himself;  and 
the  said  P.  B.  D.,  at  his  request,  had  the  care,  charge,  posses- 
sion, and  custody  of  the  said  J.  A.,  and  had  undertaken  the 
support  and  maintenance  of  the  said  J.  A.,  and  the  finding 
and  providing  the  said  J.  A.  with  reasonably  sufficient  and 
proper  victuals,  food,  drink,  board,  clothing,  and  lodging,  for 
reward  to  the  said  P.  B.  D.  in  that  behalf,  to  wit,  within  the 
jurisdiction  of  the  said  Central  Criminal  Court.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said   P.  B.  D.,  on  the  said  twenty-eighth  day  of 

October  in  the  year  of  our  Lord  ,  and  on  divers  days 

and  times  aforesaid,  to  wit,  and  before  the  death  of  the  said 
J.  A.,  as  hereinafter  mentioned,  at  the  parish  of  Tooting 
aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  J.  A. 
feloniously  did  make  divers  assaults,  and  knowingly,  wilfully, 
and  feloniously  did  put,  place,  keep,  and  lodge  the  said  J.  A. 
for  divers  long  spaces  of  time,  to  wit,  for  and  during  the 
whole  of  those  days  and  times  in  divers  rooms  and  apart- 
ments, then  and  during  all  that  time  greatly  and  excessively 
overcrowded,  overcharged,  and  filled  to  excess  with  divers  and 
very  many  other  infants  and  persons,  and  then  also  being  in 
an  ill-ventilated,  impure,  foul,  unwholesome,  unhealthy  state, 
and  in  an  unfit  and  improper  state  for  the  said  J.  A.  to  be 
put,  placed,  kept,  and  lodged  in,  and  unfit  for  the  habitation 
of  man ;  and  also  on  the  said  days  and  times,  at  the  place 
aforesaid,  within  the  jurisdiction  of  the  said  court,  wilfully 
and  feloniously  did  neglect,  omit,  and  refuse  to  give  and  ad- 
minister to,  or  find  and  provide  the  said  J.  A.  with,  and  to 
suffer  and  permit  to  be  given  and  administered  to,  or  found 
and  provided  the  said  J.  A.  with  reasonably  sufficient  and 
proper  victuals,  food,  drink,  and  clothing  necessary  for  the 
sustenance,  support,  and  maintenance  of  the  body  of  the  said 
J.  A.,  by  means  of  which  said  placing,  keeping,  putting,  and 


296  HOMICIDE.  [chap.  XXVIII. 

lodging  the  said  J.  A.  in  the  said  rooms  and  apartments,  and 
also  by  means  of  which  said  neglecting,  omitting,  and  refus- 
ing to  give  and  administer  to,  or  find  and  provide  the  said 
J.  A.  with  such  reasonably  sufficient  and  proper  victuals, 
food,  drink,  and  clothing,  as  were  necessary  for  the  sus- 
tenance, support,  and  maintenance  of  the  body  of  the  said  J. 
A.,  the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day  of  Janu- 
ary in  the  year  of  our  Lord ,  at  the  place  aforesaid,  in  i 

the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  became  and  was  mortally  sick  and  ill,  weak,  diseased, 
disordered,  and  distempered  in  his  body,  and  of  which  said  | 

last-named  mortal  sickness,  illness,  weakness,  disease,  disor- 
der, and  distemper,  the  said  J.  A.  on  and  from  the  day  and 
year  last  aforesaid,  until,  to  wit,  the  sixth  day  of  January  in 

the  year  of  our  Lord ,  as  well  at  the  parish  of  Tooting 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  as  at 
the  parish  of  Saint  Pancras,  in  the  county  of  Middlesex,  and 
within  the  jurisdiction  of  the  said  court,  did  languish,  and 
languishing  did  live,  and  then,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  last  aforesaid,  in  the  county  last 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  of  the 
said  last-named  mortal  sickness,  illness,  weakness,  disease, 
disorder,  and  distemper,  did  die.  And  so  the  jurors  aforesaid, 
on  their  oath  aforesaid,  do  say,  that  the  said  P.  B.  D.,  the 
said  J.  A.,  in  manner  and  form  in  this  count  aforesaid,  feloni- 
ously did  kill  and  slay ;  against  the  peace,  etc. 

Ninth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  and  at  the  time  of 
the  committing  of  the  offence  by  the  said  P.  B.  D.,  and  dur- 
ing all  the  times  hereinafter  mentioned,  J.  A.,  hereinafter  in 
this  count  mentioned,  was  a  poor,  indigent,  and  destitute 
child  of  a  tender  age,  to  wit,  of  the  age  of  six  years,  and 
wholly  unable  to  support,  provide  for,  and  take  care  of  him- 
self; and  the  said  P.  B.  D.,  at  his  request,  had  the  care, 
charg(!,  possession,  and  custody  of  the  said  J.  A.,  and  had 
undertaken  the  snpi)()rt  and  maintenance  of  the  said  J.  A., 
and  tlie  finding  and  providing  the  said  .1.  A.  with  reasonably 
sufficient  and  projjcr  board  and   Uxlgiiig,  for  reward  to  the 


CHAP.  XXVIII.]  HOMICIDE.  297 

said  p.  B.  D.  in  that  behalf,  to  wit,  within  the  jurisdiction  of 
the  said  Central  Criminal  Court.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  P. 
B.  D.,  on  the  said  twenty-eighth  day  of  October  in  the  year  of 

our  Lord ,  and  on  divers  days  and  times  afterwards,  and 

before  the  death  of  the  said  J.  A.,  as  hereinafter  mentioned, 
at  the  parish  of  Tooting  aforesaid,  in  the  county  of  Surrey 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  J.  A.  feloniously  did  make  divers  assaults,  and 
knowingly,  wilfully,  and  feloniously  did  put,  place,  keep,  and 
lodge  the  said  J.  A.  for  divers  long  spaces  of  time,  to  wit,  for 
and  during  the  whole  of  those  days  and  times  in  divers  rooms 
and  apartments,  then  and  during  all  that  time  greatly  and  ex- 
cessively overcrowded,  overcharged,  and  filled  to  excess  with 
divers  and  very  many  other  infants  and  persons,  and  then  also 
being  in  an  ill-ventilated,  impure,  foul,  unwholesome,  ajid 
unhealthy  state,  and  in  an  unfit  and  improper  state  for  the 
said  J.  A.  to  be  put,  placed,  kept,  and  lodged  in.  By  means 
of  which  said  putting,  placing,  keeping,  and  lodging  the  said 
J.  A.  in  the  said  rooms  and  apartments,  the  said  J.  A.  after- 
wards, to  wit,  on  the  fifth  day  of  January  in  the  year  of  our 

Lord  ,  at  the  parish  aforesaid,  in  the  county  aforesaid, 

and  within  the  jurisdiction  of  the  said  court,  became  and 
was  mortally  sick  and  ill,  weak,  diseased,  disordered,  and 
distempered  in  his  body,  and  of  which  said  last-mentioned 
sickness,  illness,  weakness,  disease,  disorder,  and  distemper, 
the  said  J.  A.,  on  and  from  the  day  and  year  last  aforesaid, 
until,  to  wit,  on  the  sixth  day  of  January  in  the  year  of  our 

Lord  ,  as  well  at  the  parish  of  Tooting  aforesaid,  and 

within  the  jurisdiction  of  the  said  court,  as  at  the  parish  of 
Saint  Pancras,  in  the  county  of  Middlesex,  and  within  the 
jurisdiction  of  the  said  court,  did  languish,  and  languishing 
did  live,  and  then,  to  wit,  on  the  day  and  year  last  aforesaid, 
at  the  parish  last  aforesaid,  in  the  county  last  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  of  the  said  last-men- 
tioned mortal  sickness,  illness,  weakness,  disease,  disorder,  and 
distemper,  did  die.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  P.  B.  D.,  the  said  J.  A., 


298  HOMICIDE.  [CIIAP.  XXVIII. 

in  manner  and  form  in  this  count  aforesaid,  feloniously  did 
kill  and  slay ;  against  the  peace,  etc. 


6.  Indictment  for  murder  hj,  inter  alia,  a  series  of  beatings} 

The  jurors,  etc.,  upon  their  oath  present,  that  Robert  Cour- 
tice  Bird,  late  of  the  parish  of  Buckland  Brewer  in  the  county 
of  Devon,  laborer,  and  Sarah,  the  wife  of  the  said  Robert 
Courtice  Bird,  late  of  the  same  parish,  on  the  fifth  day  of 

November,  in  the  year  of  our  Lord ,  with  force  and  arms, 

at  the  parish  aforesaid,  in  the  county  aforesaid,  in  and 
upon  one  Mary  Ann  Parsons,  unlawfully,  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  did  make  an  as- 
sault, and  that  the  said  Robert  Courtice  Bird  and  Sarah 
his  wife,  with  a  certain  stick,  the  said  Mary  Ann  Par- 
sons in  and  upon  the  head,  chest,  shoulders,  back,  arms,  legs, 
and  thighs  of  the  said  Mary  Ann  Parsons,  then  and  there  fe- 
loniously, wilfully,  and  of  their  malice  aforethought,  did 
strike  and  beat,  the  said  Robert  Courtice  Bird  and  Sarah  his 
wife,  giving  to  the  said  Mary  Ann  Parsons  then  and  there, 
thereby,  to  wit,  with  the  stick  aforesaid,  in  and  upon  the 
head,  chest,  shoulders,  back,  arms,  legs,  and  thighs  of  the  said 
Mary  Ann  Parsons,  divers  mortal  bruises,  of  which  said  mor- 
tal bruises  the  said  Mary  Ann  Parsons,  from  the  said  fifth 
day  of  November,  in  the  year  aforesaid,  until  the  fourth  day 
of  January,  in  the  year  of  our  Lord ,  at  the  parish  afore- 
said, in  the  county  aforesaid,  did .  languish,  and  languishing 
did  live,  on  which  said  fourth  day  of  January,  in  the  year  last 
aforesaid,  the  said  Mary  Ann  Parsons  at  the  parish  aforesaid, 
in  the  county  aforesaid,  of  the  said  mortal  bruises  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  Robert  Courtice  Bird  and  Sarah  his  wife,  the  said 
Mary  Ann  Parsons,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  unlawfully,  and  of  their  malice  aforethought,  did 
kill  and  murder,  against  the  peace,  etc. 

1  llc;,nna  v.  IJird,  5  Cox,  C.  C.  1  ;    2  Eng.  Law  ami  Eq.  Rep.  428;  1 
Tcmiile  &  ]\Icw,  C.  C  43H,  note. 


CHAP.  XXVIII.]  HOMICIDE.  299 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Robert  Courtice 
Bird,  late  of  the  parish  of  Buckland  Brewer,  in  the  county  of 
Devon,  and  Sarah  his  wife,  late  of  the  same  parish,  on  the 

fifth  day  of  November,  in  the  year  of  our  Lord ,  and  on 

divers  other  days  and  times  between  that  day  and  the  third 

day  of  January  in  the  year  of  our  Lord ,  to  wit,  on  the 

first  day  of  December  in  the  year  of  our  Lord ,  and  the 

first  day  of  January  in  the  year  of  our  Lord ,  respectively, 

with  force  and  arms,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  Mary  Ann  Parsons,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  make  divers, 
to  wit,  ten  assaults ;  and  that  the  said  Robert  Courtice  Bird 
and  Sarah  his  wife,  with  a  certain  stick,  the  said  Mary  Ann 
Parsons  in  and  upon  the  head,  chest,  shoulders,  arms,  legs, 
and  thighs  of  the  said  Mary  Ann  Parsons,  then  and  there,  to 
wit,  at  the  several  times  aforesaid,  at  the  parish  aforesaid,  and 
county  aforesaid,  feloniously,  wilfully,  wickedly,  and  of  their 
malice  aforethought,  did  strike  and  beat,  the  said  Robert 
Courtice  Bird  and  Sarah  his  wife,  to  the  said  Mary  Ann 
Parsons  then  and  there,  thereby,  to  wit,  with  the  said  stick, 
at  the  several  times  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  giving  to  the  said  Mary  Ann  Parsons  in  and 
upon  the  head,  chest,  shoulders,  arms,  legs,  and  thighs  of  the 
said  Mary  Ann  Parsons,  divers,  to  wit,  ten  mortal  bruises,  of 
which  said  mortal  bruises  the  said  Mary  Ann  Parsons,  from 
the  said  fifth  day  of  November,  in  the  year  aforesaid,  and  the 
several  other  days  aforesaid,  until  the  fourth  day  of  January, 

in  the  year  of  our  Lord ,  at  the  parish  aforesaid,  in  the 

county  aforesaid,  did  languish,  and  languishing  did  live,  on 
which  said  fourth  day  of  January,  in  the  year  last  aforesaid, 
the  said  Mary  Ann  Parsons,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  of  the  said  mortal  bruises  died.  And  so 
the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say  that  the 
said  Robert  Courtice  Bird  and  Sarah  his  wife,  the  said  IMary 
Ann  Parsons,  in  manner  and  form  aforesaid,  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  did  kill  and  murder, 
against  the  peace,  etc. 


300  HOMICIDE.  [chap.  XXVIII. 

Third  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Robert  Courtice 
Bird  and   Sarah  his  wife,  on  the  fifth  day  of  November  in 

the  year  of  our  Lord  ,  and  on  divers  other  days  and 

times  between  that  day  and  the  third  day  of  January  in  the 

year  of  our  Lord ,  to  wit,  on  the  first  day  of  December 

in  the  year  of  our  Lord ,  and  first  day  of  January  in  the 

year  of  our  Lord  ,  respectively,  with  force  and  arms,  at 

the  parish  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 
Mary  Ann  Parsons,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  make  divers,  to  wit,  ten  assaults ;  and  that 
the  said  Robert  Courtice  Bird,  with  a  certain  stick,  and  the 
said  Sarah  the  wife  of  the  said  Robert  Courtice  Bird,  with  a 
certain  other  stick,  the  said  Mary  Ann  Parsons  in  and  upon 
the  head,  chest,  shoulders,  arms,  legs,  and  thighs  of  the  said 
Mary  Ann  Parsons  then  and  there,  to  wit,  at  the  several  times 
aforesaid,  at  the  parish  aforesaid,  and  county  aforesaid,  fe- 
loniously, wilfully,  and  of  their  malice  aforethought,  did 
respectively  strike  and  beat,  the  said  Robert  Courtice  Bird, 
and  Sarah  his  wife,  respectively,  to  the  said  Mary  Ann  Par- 
sons then  and  there,  thereby,  to  wit,  at  the  several  times  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  with  the 
several  sticks  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  giving  with  this,  that  they  respectively,  then  and 
thereby  gave  to  the  said  Mary  Ann  Parsons  in  and  upon  the 
head,  chest,  shoulders,  arms,  legs,  and  thighs  of  the  said  Mary 
Ann  Parsons,  divers,  to  wit,  ten  mortal  bruises,  of  which  said 
mortal  bruises  the  said  Mary  Ann  Parsons,  from  the  said  fifth 
day  of  November  in  the  year  of  our  Lord  aforesaid,  and  the 
several  other  days  aforesaid,  until  the  fourth  day  of  January 

in  the  year  of  our  Lord ,  at  the  parish  aforesaid,  in  the 

county  aforesaid,  did  languish,  and  languishing  did  live,  on 
which  said  fourlh  day  of  January  in  the  year  last  aforesaid, 
the  said  Mtiry  Ann  Parsons,  at  the  parish  aforesaid,  and 
county  aforesaid,  of  the;  said  mortal  bruises  so  given  as  afore- 
said, <li(d.  And  so  the  jurors  aforesaid,  uj)on  their  oatli  afore- 
said, do  say,  that  tlu;  said  Robert  Courtice  Bird  and  Sarah 
his  wife,  the  said  Mary  Ann  Parsons,  in  manner  and  form 


CHAP.  XXVIII.]  HOMICIDE.  301 

aforesaid,  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  kill  and  murder,  against  the 
peace,  etc. 

Fourth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Robert  Courtice 
Bird,  and  Sarah  his  wife,  on  the  fifth  day  of  November  in 

the  year  of  our  Lord  ,  and  on  divers  other  days  and 

times  between  that  day  and  the  third  day  of  January  in  the 

year  of  our   Lord ,  with   force  and  arms,  at  the  parish 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  Mary 
Ann  Parsons,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  divers  assaults ;  and  that  the  said  Robert 
Courtice  Bird  and  Sarah  his  wife,  with  a  certain  scourge,  to 
wit,  a  scourge  made  of  a  certain  leather  thongs,  to  a  certain 
stick  affixed,  the  said  Mary  Ann  Parsons  in  and  upon  the 
head,  chest,  shoulders,  back,  arms,  legs,  and  thighs  of  the  said 
Mary  Ann  Parsons,  then  and  there  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  strike  and  beat,  the  said 
Robert  Courtice  Bird,  and  Sarah  his  wife,  giving  to  the  said 
Mary  Ann  Parsons  then  and  there,  thereby,  to  wit,  with  the 
scourge  aforesaid,  at  the  several  times  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  in  and  upon  the  head,  chest, 
shoulders,  back,  arms,  legs,  and  thighs  of  the  said  Mary  Ann 
Parsons,  divers  mortal  bruises,  of  which  said  mortal  bruises 
the  said  Mary  Ann  Parsons,  from  the  said  fifth  day  of  No- 
vember and  the  said  other  days  and  times,  until  the  said 
fourth  day  of  January  in  the  year  of  our  Lord  ,  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live,  on  which  said  fourth  day  of 
January  in  the  year  last  aforesaid,  the  said  Mary  Ann  Par- 
sons, at  the  parish  aforesaid,  in  the  county  aforesaid,  of  the 
said  several  mortal  bruises  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  Robert  Cour- 
tice Bird,  and  Sarah  his  wife,  the  said  Mary  Ann  Parsons,  in 
manner  and  form  aforesaid,  by  the  means  aforesaid,  feloni- 
ously, wilfully,  and  of  their  malice  aforethought,  did  kill  and 
murder  ;  against  the  peace,  etc. 

,     Fifth  Count, —  And  the  jurors  aforesaid,  upon  their  oath 

26 


302  HOMICIDE.  [chap.  XXVIII. 

aforesaid,  do  further  present,  that  the  said  Kobert  Courtice 
Bird,  and  Sarah  his  wife,  on  the  first  day  of  January  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  the  parish 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  Mary 
Ann  Parsons,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  Robert  Cour- 
tice Bird,  with  both  his  hands,  and  the  said  Sarah  Bird,  with 
both  her  hands,  the  said  Mary  Ann  Parsons  to  and  against  the 
ground,  then  and  there  feloniously,  wilfully,  and  of  their  mal- 
ice aforethought,  did  cast  and  throw,  by  which  said  casting 
and  throwing  the  said  Mary  Ann  Parsons  to  and  against  the 
ground,  the  said  Robert  Courtice  Bird  and  Sarah  Bird  then 
and  there  gave  the  said  Mary  Ann  Parsons  divers  mortal 
bruises  in  and  upon  the  head,  stomach,  sides,  and  back  of  the 
said  IMary  Ann  Parsons,  of  which  said  mortal  bruises  the 
said  Mary  Ann  Parsons,  from  the  said  first  day  of  January  in 

the  year  of  our  Lord ,  until  the  fourth  day  of  January  in 

the  year  of  our  Lord ,  to  wit,  then  and  there,  at  the  parish 

aforesaid,  in  the  county  aforesaid,  did  languish,  and  languish- 
ing did  live,  on  which  said  fourth  day  of  January  in  the  year 
last  aforesaid,  the  said  Mary  Ann  Parsons,  at  the  parish  afore- 
said, in  the  county  aforesaid,  of  the  said  mortal  bruises  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  Robert  Courtice  Bird  and  Sarah  his  wife,  the 
said  Mary  Ann  Parsons,  in  manner  and  form  aforesaid,  by  the 
means  aforesaid,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  kill  and  murder ;  against  the  peace,  etc. 

Sixth  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Robert  Courtice 
Bird,  and  Sarah  his  wife,  on  the  first  day  of  January  in  the 

year  of  our  Lord  ,  with  force  and  arms,  at  the  parish 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  Mary 
Ann  Parsons,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  Robert 
Courtice  Bird  then  and  there,  with  both  his  hands,  and  the 
said  Sarah,  the  wife  of  the  said  Rob(n-t  Courtice  Bird,  then 
and  there,  with  l)<)th  her  hands,  tlie  said  Mary  Ann  Parsons 
to  and  against  the  ground  then  and  there  feloniously,  wilfully, 


CHAP.  XXVIII.]  HOMICIDE.  303 

and  of  their  malice  aforethought,  respectively,  did  then  and 
there  cast  and  throw,  and  that  the  said  Robert  Courtice  Bird 
then  and  there,  with  both  the  feet  of  the  said  Robert  Courtice 
Bird,  and  the  said  Sarah,  the  wife  of  the  said  Robert  Courtice 
Bird,  then  and  there,  with  both  the  feet  of  the  said  Sarah, 
whilst  the  said  Mary  Ann  Parsons  being  so  then  and  there 
cast  and  thrown  to  and  against  the  ground,  then  was  then 
and  there  upon  the  ground,  the  said  Mary  Ann  Parsons  in  and 
upon  the  head,  stomach,  back,  and  sides  of  the  said  Mary 
Ann  Parsons,  then  and  there  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  respectively  then  and  there  strike, 
beat,  and  kick,  the  said  Robert  Courtice  Bird,  and  Sarah  his 
wife,  then  and  there  respectively,  as  well  by  the  casting  and 
throwing  of  the  said  Mary  Ann  Parsons  to  the  ground  as 
aforesaid,  as  also  by  the  striking,  beating,  and  kicking  the 
said  Mary  Ann  Parsons  in  and  upon  the  head,  stomach,  back, 
and  sides  of  the  said  Mary  Ann  Parsons,  in  manner  and  form 
aforesaid,  while  on  the  ground  as  aforesaid,  then  and  there 
thereby  giving  to  the  said  Mary  Ann  Parsons  divers,  to  wit, 
twenty  mortal  bruises  in  and  upon  the  head,  stomach,  back, 
and  sides  of  the  said  Mary  Ann  Parsons,  of  which  said  mor- 
tal bruises  so  caused  as  aforesaid,  the  said  Mary  Ann  Par- 
sons, from  the  said  first  day  of  January  in  the  year  of  our 

Lord ,  until  the  fourth  day  of  January  in  the  year  of  our 

Lord ,  then  and  there,  to  wit,  at  the  parish  aforesaid,  in 

the  county  aforesaid,  did  languish,  and  languishing  did  live, 
on  which  said  fourth  day  of  January  in  the  year  last  afore- 
said, the  said  Mary  Ann  Parsons,  at  the  parish  and  in  the 
county  aforesaid,  of  the  said  mortal  bruises  so  given  as  afore- 
said, died.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  Robert  Courtice  Bird  and  Sarah 
his  wife,  the  said  Mary  Ann  Parsons,  in  manner  and  form 
aforesaid,  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  kill  and  murder ;  against  the 
peace,  etc. 


304  HOMICIDE.  [chap.  XXVIII. 


7.  For'  murder  by  striking'  ivith  an  axe} 

The  jurors,  etc.,  upon  theii'  oath  present,  that  John  L. 
Chapman,  late  of  Sherborne,  in  the  county  of  Middlesex, 
laborer,  on  the  fourteenth  day  of  September  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-three,  at  Sher- 
borne aforesaid,  in  the  county  aforesaid,  with  force  and  arms, 
in  and  upon  one  Reuben  Cozzens,  did  make  an  assault,^  and 
that  the  said  John  L.  Chapman,  with  a  certain  axe,  the  said 
Reuben  Cozzens,  in  and  upon  the  back  side  of  the  head  of 
the  said  Reuben  Cozzens,  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  strike  and  bruise,  giving 
to  the  said  Reuben  Cozzens,  then  and  there,  with  the  axe 
aforesaid,  in  and  upon  the  said  back  side  of  the  head  of  the 
said  Reuben  Cozzens,  one  mortal  wound,  of  which  said  mor- 
tal wound  the  said  Reuben  Cozzens  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  John  L.  Chapman,  the  said  Reuben 
Cozzens  then  and  there,  in  manner  and  form  aforesaid,  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  kill  and 
murder;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


8.  For  murder  hj  throiving-  stones.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  Joseph 
Dale,  late  of,  etc.,  laborer,  John  Piatt,  late  of,  etc.,  laborer,  and 
Charles  Taylor,  late  of,  etc.,  laborer,  on,  etc.,  with  force  and 
arms,  at,  etc.,  in  and  upon  one  William  Wood,  feloniously, 
wilfully,   and   of  their   malice   aforethought,    did   make   an 


*  Commonwealth  i-.  Chapman,  The  Monthly  Law  lleportcr,  vol.  7,  n.  s 
p.  155. 

'  Sec  ante,  p.  253. 

8  Hex  V.  Dale,  1  Moody,  C.  C.  5 ;  ante,  p.  217,  218. 


CHAP.  XXVIII.]  HOMICIDE.  305 

assault,  and  that  the  said  Joseph  Dale,  John  Piatt,  and 
Charles  Taylor,  certain  stones  in  and  upon  the  back  part  of 
the  head  of  the  said  William  Wood  then  and  there  feloni- 
ously, wilfully,  and  of  their  malice  aforethought,  did  cast  and 
throw,  and  that  the  said  Joseph  Dale,  John  Piatt,  and  Charles 
Taylor,  with  the  stones  aforesaid,  so  as  aforesaid  cast  and 
thrown,  the  aforesaid  William  Wood,  in  and  upon  the  back 
part  of  the  head  of  the  said  William  Wood  then  and  there 
feloniously,  wilfully,  and  of  their  malice  aforethought  did 
strike,  penetrate,  and  wound,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  then  and  there  giving  to  the  said 
William  Wood,  by  the  casting  and  throwing  of  the  stones 
aforesaid  in  and  upon  the  back  part  of  the  head  of  the  said 
William  Wood  one  mortal  wound,  bruise,  fracture,  and  contu- 
sion, of  the  breadth  of  one  inch,  and  of  the  depth  of  half  an 
inch,  of  which  said  mortal  wound,  bruise,  fracture,  and  con- 
tusion, the  said  William  Wood  then  and  there  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  Joseph  Dale,  John  Piatt,  and  Charles  Taylor,' 
the  said  William  Wood,  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  kill  and  murder ;  against  the  peace,  etc. 


9.  For  murder  by  causing  premature  birth} 

The  jurors,  etc.,  upon  their  oath  present,  that  before  and 
at  the  time  of  the  committing  of  the  felony  and  murder  here- 
inafter next  mentioned,  one  Sarah  Henson  was  then  quick 
with  a  certain  male  child ;  and  that  Ann,  the  wife  of  Joseph 
West,  late  of,  etc.,  well  knowing  the  said  Sarah  Henson  to  be 
quick  with  the  said  male  child  as  aforesaid,  and  feloniously, 
wilfully,  and  of  her  malice  aforethought,  devising,  contriving, 
and  intending,  feloniously,  unlawfully,  wickedly,  and  wilfully 
to  cause  and  procure  the  said  Sarah  Henson  to  bring  forth 
from  and  out  of  her  womb  the  said  male  child,  with  which 


'  Regina  v.  West,  2  Carrington  &  Kirwau,  784 ;  2  Cox,  C.  C  500. 

26* 


306  HOMICIDE.  [chap.  XXVIII. 

she  was  so  quick  as  aforesaid,  and  to  cause  and  procure  the 
said  male  child  to  be  prematurely  brought  forth  from  and 
out  of  the  womb  of  the  said  Sarah  Henson,  and  thereby, 
and  by  means  thereof,  the  said  male  child,  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  to  kill  and  murder,  on, 
etc.,  with  force  and  arms,  at,  etc.,  in  and  upon  the  said  male 
child  so  quick  in  the  womb  of  the  said  Sarah  Henson 
as  aforesaid  then  and  there  being,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  make  an  assault,  and  that 
the  said  Ann  West  then  and  there  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  put,  place,  and  force 
the  right  hand  of  the  said  Ann  "West  into  the  private  parts 
of  the  said  Sarah  Henson,  and  upward  into  the  womb  of 
the  said  Sarah  Henson,  and  a  certain  pin  into  the  private 
parts,  and  up  into  the  womb  of  the  said  Sarah  Henson  then 
and  there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  put,  place,  and  force,  and  the  said  Ann  West,  by  such 
putting,  placing,  and  forcing  the  right  hand  of  the  said  Ann 
West  into  the  private  parts  of  the  said  Sarah  Henson  as 
aforesaid,  and  up  and  into  the  womb  of  the  said  Sarah  Hen- 
son as  aforesaid,  and  by  such  putting,  placing,  and  forcing 
the  said  pin  into  the  private  parts,  and  up  into  the  womb  of 
the  said  Sarah  Henson  as  aforesaid,  the  said  Ann  West, 
afterwards,  to  wit,  on,  etc.,  with  force  and  arms,  at,  etc., 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
cause  and  procure  the  said  Sarah  Henson  to  bring  forth  the 
said  male  child  from  and  out  of  tlie  womb  of  the  said  Sarah 
Henson  as  aforesaid,  and  did  then  and  there  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  cause  and  procure  the 
said  male  child  to  be  prematurely  born  and  brought  forth 
alive  from  and  out  of  the  womb  of  the  said  Sarah  Henson  as 
aforesaid,  and  that  the  said  male  child,  by  means  of  being  so 
prematurely  born  and  brought  forth  alive  from  and  out  of  the 
womb  of  the  said  Sarah  Henson  as  aforesaid,  then  and  there 
became  and  was  mortally  weakened,  debilitated,  and  ema- 
ciated in  his  body,  of  which  said  mortal  weakness,  debility, 
and  emaciation  of  the  body  of  tiie  said  male  child,  the  said  male 
child  for  the  space  of  five  hours,  on,  etc.,  at,  etc.,  did  languish, 


CHAP.  XXVIII.]  HOMICIDE.  307 

and  languishing  did  live,  and  then,  to  wit,  on  the  said  last- 
mentioned  day,  in  the  year  aforesaid,  the  said  male  child,  at, 
etc.,  of  the  said  mortal  weakness,  debility,  and  emaciation  of 
his  body  aforesaid,  did  die.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  Ann  West,  the  said 
male  child,  in  manner  and  form  aforesaid,  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  did  kill  and  murder ; 
against  the  peace,  etc. 

There  were  three  other  counts,  in  two  of  which,  the  state- 
ment of  an  assault  upon  the  child  was  omitted. 

10.  For  murder  hy  throwing  npon  the  ground,  heating,  eic.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  Robert  IMos- 
ley,  late  of  the  parish  of  Wakefield  in  the  county  of  York, 
laborer,  and  Benjamin  Morrill,  late  of  the  same  place,  laborer, 
on  the  thirtieth  day  of  September,  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  the  parish  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  Jonathan  Depledge,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  did  make 
an  assault,  and  that  the  said  Robert  Mosley  and  Benjamin 
Morrill,  then  and  there  feloniously,  wilfully,  and  of  their  mal- 
ice aforethought,  did  with  great  force  and  violence,  pull,  push, 
cast,  and  throw  the  said  Jonathan  Depledge,  down  unto  and 
upon  the  ground  there,  and  that  the  said  Robert ,  Mosley  and 
Benjamin  Morrill,  with  both  the  hands  and  feet  of  the 
said  Robert  Mosley  and  Benjamin  Morrill,  then  and  there, 
and  while  the  said  Jonathan  Depledge  was  so  lying  and  being 
upon  the  ground,  the  said  Jonathan  Depledge,  in  and  upon 
the  head,  stomach,  breast,  belly,  back,  and  sides  of  the 
said  Jonathan  Depledge,  then  and  there  feloniously,  wilfully, 
and  of  their  malice  aforethought,  divers  times  with  great 
force  and  violence,  did  strike,  beat,  and  kick,  and  that  the  said 
Robert  Mosley  and  Benjamin  Morrill,  with  both  the  hands, 
feet,  and  knees  of  the  said  Robert  Mosley  and  Benjamin  Mor- 
rill, and  each  of  them,  then  and  there,  [and   while  the  said 

^  Rex  I'.  Mosley,  1  Moody,  C.  C.  98 ;  ante,  p.  248,  and  note. 


303  HOMICIDE.  [chap,  xxvih. 

Jonathan  Depledge  was  so  lying  and  being  upon  the  ground 
as  aforesaid,  the  said  Jonathan  Depledge  in  and  upon  the  belly, 
head,  stomach,  and  sides  of  the  said  Jonathan  Depledge,  then 
and  there  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  with  great  force  and  violence  strike,  push,  press, 
and  squeeze,  giving  to  the  said  Jonathan  Depledge,  then  and 
there  as  well  by  the  pulling,  pushing,  casting,  and  throwing 
of  the  said  Jonathan  Depledge  down  unto  and  upon  the 
ground  as  aforesaid,  and  by  the  striking,  beating,  and  kicking 
of  the  said  Jonathan  Depledge,  whilst  he  was  so  lying  and 
being  upon  the  ground  as  aforesaid,  in  and  upon  the  head, 
stomach,  breast,  belly,  back,  and  sides  of  the  said  Jonathan 
Depledge  as  aforesaid,  as  also  by  the  striking,  pushing,  press- 
ing, and  squeezing  of  the  said  Jonathan  Depledge,  whilst  the 
said  Jonathan  Depledge  was  so  lying  and  being  upon  the 
ground  as  aforesaid,  in  and  upon  the  belly,  breast,  stomach, 
and  sides  of  the  said  Jonathan  Depledge,  with  the  hands, 
knees,  and  feet  of  the  said  Robert  Mosley  and  Benjamin 
IMorrill,  in  manner  aforesaid,  several  mortal  bruises,  lacera- 
tions, and  wounds,  in  and  upon  the  belly,  breast,  stomach, 
and  sides  of  the  said  Jonathan  Depledge,  of  which  said  sev- 
eral mortal  bruises,  lacerations,  and  wounds  the  said  Jona- 
than Depledge,  from  the  said  thirtieth  day  of  September,  in 

the  year  of  our  Lord ,  until  the  tenth  day  of  October,  in 

the  same  year,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
did  languish,  and  languishing  did  live,  on  which  tenth  day  of 
October,  in  the  year  aforesaid,  the  said  Jonathan  Depledge 
at  the  parish  aforesaid,  in  the  county  aforesaid,  of  the  said 
several  mortal  bruises,  lacerations,  and  wounds,  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  Robert  Mosley  and  Benjamin  Morrill,  the  said  Jona- 
than Depledge  in  manner  and  form  and  by  the  means  afore- 
said, feloniously,  wilfully,  and  of  ihcir  malice  aforethought, 
did  kill  and  murder;   against  the  peace,  etc. 


CHAP.  XXVIII.]  HOMICIDE.  309 

11.  For  murder,  hy  slabbing  ivilh  a  knife} 

The  jurors,  etc.,  upon  their  oath  present,  that  Abner 
Rogers,  the  younger  of  that  name,  late  of  Charlestown,  in  the 
county  of  Middlesex,  and  Commonwealth  aforesaid,  laborer, 
and  a  convict  and  prisoner,  under  a  sentence  of  imprisonment 
and  hard  labor,  in  the  State  prison  of  said  Commonwealth, 
situated  in  Charlestown,  in  said  county  of  Middlesex,  which 
prison,  and  the  precincts  thereof,  by  force  of  the  statute  in 
such  case  made  and  provided,  are  deemed  by  law,  for  the 
purpose  of  all  judicial  proceedings  concerning  crimes  and 
offences  committed  within  said  prison  and  its  precincts,  to  be 
within  and  a  part  of  the  county  of  Suffolk,  as  well  as  the 
county  of  Middlesex,  and  which  sentence  was  lawful,  unre- 
versed,  unexpired,   and   in  full  force,  with  force  and  arms, 

on  the  fifteenth  day  of  June  in  the  year  of  our  Lord ,  at 

the  State  prison  aforesaid,  and  within  the  precincts  thereof, 
at  Charlestown  aforesaid,  and  in  the  county  of  Suffolk,  and 
within  the  criminal  jurisdiction  of  the  court,  as  aforesaid,  by 
force  of  said  statute,  in  and  upon  one  Charles  Lincoln,  the 
younger  of  that  name,  then  and  there  being  the  warden  of  the 
said  State  prison,  lawfully  appointed  and  qualified,  and  being 
then  and  there  in  the  due  and  lawful  exercise  and  discharge 
of  the  duties  of  his  said  office  of  warden  as  aforesaid,  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault;  and  that  the  said  Abner  Rogers,  with  a  certain  knife, 
commonly  called  a  shoe  knife,  in  and  upon  the  back  and 
neck  of  the  said  Charles  Lincoln,  then  and  there  warden  as 
aforesaid,  did  then  and  there  in  said  prison,  and  within  the 
precincts  thereof,  at  Charlestown  aforesaid,  in  said  county  of 
Suffolk  as  aforesaid,  and  within  the  criminal  jurisdiction  of 
this  court,  on  said  fifteenth  day  of  said  June,  with  force  and 
arms,  feloniously,  wilfully,  and  of  his  malice  aforethought,  the 
said  Charles  Lincoln  three  times  did  strike,  thrust,  stab,  pene- 
trate, and  wound,  giving  the  said  Lincoln  then  and  there, 
with  the  knife  aforesaid,  in  and  upon  the  back,  neck,  and 

^  Commonwealth  v.  Rogers,  Bigelow  &  Bemis,  Report,  1. 


310  HOMICIDE.  [chap.  XXVIII. 

throat  of  the  said  Lincoln,  two  mortal  wounds,  to  wit,  one 
mortal  wound,  of  the  length  of  two  inches,  of  the  breadth  of 
one  inch,  and  of  the  depth  of  three  inches,  in  and  upon  the 
back  of  the  said  Lincoln,  near  the  shoulder  blades  and  the 
spine  of  his  back ;  and  one  other  mortal  wound  in  and  upon 
the  left  side  of  the  neck  and  throat  of  the  said  Lincoln,  of  the 
length  of  three  inches,  of  the  breadth  of  one  inch,  and  of  the 
depth  of  three  inches,  of  which  said  mortal  wounds  the  said 
Charles  Lincoln  then  and  there,  in  the  precincts  of  said 
prison,  in  the  county  of  Suffolk  as  aforesaid,  and  within  the 
criminal  jurisdiction  of  this  court,  instantly  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  and  pre- 
sent, that  the  said  Abner  Rogers,  the  said  Charles  Lincoln 
then  and  there,  on  the  said  fifteenth  day  of  June  in  the  year 

of  our  Lord ,  in  the  State  prison  aforesaid,  and  within 

the  precincts  thereof,  at  Charlestown  aforesaid,  in  the  county 
of  Suffolk  as  aforesaid,  and  within  the  criminal  jurisdiction  of 
this  court,  did,  in  manner  and  form  aforesaid,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  kill  and  murder ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


12.    For  murder  by   selling  poisonous  berries  as  good  and 
ivholesome  food} 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  H.  late 
of  the  parish  of  St.  Mary,  Whitechapel,  in  the  county  of  Mid- 
dlesex, and  within  the  jurisdiction  of  the  Central  Criminal 
Court,  laborer,  on  the  fifteenth  day  of  August  in  the  year  of 

our  Lord ,  with  force  and  arms,  at  the  parish  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  feloniously,  knowingly,  wilfully,  and  of  his  malice 
aforethought,  gave  and  administered  to  the  said  T.  P.,  with 
intent  that  the  said  T.  P.  should  take,  eat,  and  swallow  down 
the  same,  a  large  quantity  of  certain  noxious,  destructive,  and 
poisonous  berries,  called  berries  of  the  deadly  nightshade,  to 

'  2  Cox,  C.  C.  Appendix,  p.  iv. 


CHAP.  XXYIII.]  HOMICIDE.  311 

wit,  the  quantity  of  one  pint  of  the  said  berries,  as  and  for 
good  and  wholesome  food  and  aliment  for  the  said  T.  P.,  and 
that  the  said  T.  P.,  not  knowing  the  said  berries  so  given  and 
administered  to  him  as  aforesaid  to  be  noxious,  destructive, 
and  poisonous,  but  believing  the  said  berries  to  be  good  and 
wholesome  food  and  aliment  for  him,  did  then  and  there,  to 
wit,  on  the  day  and  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  take,  eat,  and  swallow  down  a  large  quantity, 
to  wit,  the  quantity  of  a  pint  of  the  said  berries,  by  means 
whereof  the  said  T.  P.  then  and  there  became,  and  then  and 
there  was  mortally  sick  and  distempered  in  his  body ;  and 
the  said  T.  P.  of  the  poison  aforesaid  so  by  him  taken,  eaten, 
and  swallowed  down  as  aforesaid,  and  of  the  mortal  sickness 
and  distemper  occasioned  thereby,  from  the  said  fifteenth  day 
of  August  in  the  year  aforesaid,  until  the  seventeenth  day  of 
August  in  the  same  year,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did  lan- 
guish, and  languishing  did  live,  on  which  said  seventeenth  day 
of  August  in  the  year  aforesaid,  the  said  T.  P.,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  of  the  poison  aforesaid,  and  of  the  mortal 
sickness  and  distemper  of  his  body  aforesaid,  did  die.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  J.  H.,  the  said  T.  P.,  in  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder ;  against  the  peace,  etc. 

There  was  a  second  count,  only  differing  from  the  first,  in 
stating  the  berries  to  have  been  "  of  a  plant  called  atropa  bel- 
ladonna." 

13.  First  Count.  —  For  murder  by  stabbing'  with  a  knife} 

The  jurors,  etc.,  upon  their  oath  present,  that  John  W 
Webster,  late  of  Cambridge,  in  the  county  of  Middlesex,  gen- 
tleman, on  the  twenty-third  day  of  November  in  the  year  of 

^  Commonwealth  v.  "Webster,  Bemis's  Report,  p.  1,  2,  3  ;  5  Gushing,  p.  81, 
295. 


312  HOMICIDE.  [chap.  XXVIII. 

our  Lord ,  at  Boston,  in  the  county  of  Suffolk,  in  and 

upon  one  George  Parkman,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault;  and  that  the  said 
John  W.  Webster,  with  a  certain  knife,  the  said  George  Park- 
man,  in  and  upon  the  left  side  of  the  breast  of  the  said 
George  Parkman,  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  strike,  cut,  stab,  and  thrust,  giv- 
ing to  the  said  George  Parkman,  then  and  there  w^th  the 
knife  aforesaid,  in  and  upon  the  left  side  of  the  breast  of  the 
said  George  Parkman,  one  mortal  wound  of  the  length  of 
one  inch,  and  of  the  depth  of  three  inches  ;  of  which  said 
mortal  wound,  the  said  George  Parkman  then  and  there  in- 
stantly died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  John  W.  "Webster,  the  said 
George  Parkman,  in  manner  and  form  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder ;  against  the  peace  of  the  Commonwealth 
aforesaid,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

Second  Count.  —  For  murder^  hy  inflicting  a  bloiu  on  the  head 
ivith  a  hammer. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  John  W.  Webster,  at  Bos- 
ton aforesaid,  in  the  county  aforesaid,  on  the  twenty-third 

day   of   November  in   the   year  of  our   Lord  ,   in  and 

upon  the  said  George  Parkman,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault;  and  that  the 
said  John  W.  Webster,  then  and  there,  with  a  certain  ham- 
mer, the  said  George  Parkman  in  and  upon  the  head  of  the 
said  George  Parkman,  then  and  there  feloniously,  wilfully, 
and  of  liis  malice  aforethought,  did  strike,  giving  unto  the 
said  George  Parkman,  then  and  there  with  the  hammer  afore- 
said, by  the  stroke  aforesaid,  in  manner  aforesaid,  in  and 
upon  the  head  of  the  said  George  Parkman,  one  mortal 
wouiid;  of  which  said  iiuirlal  wound  the  said  George  Park- 
man  ihcn  and  llicre  instaully  tlied.     And  so  the  jurors  afore- 


CHAP.  XXVIII.]  HOMICIDE.  313 

said,  upon  their  oath  aforesaid,  do  say,  that  the  said  John  W. 
Webster,  the  said  George  Parkman,  in  manner  and  form 
aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  kill  and  murder ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


Third  Count.  —  For  murder,  hy  striking,  kicking,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  John  W.  Webster,  at  Boston 
aforesaid,    in    the   county    aforesaid,    on    the    twenty-third 

day  of  November  in  the  year  of  our  Lord  ,  in   and 

upon  the  body  of  one  George  Parkman,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault ;  and 
that  the  said  John  W.  Webster,  then  and  there,  with  his 
hands  and  feet,  the  said  George  Parkman,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  strike,  beat,  and 
kick,  in  and  upon  the  head,  breast,  back,  belly,  sides,  and 
other  parts  of  the  body  of  the  said  George  Parkman ;  and 
did,  then  and  there,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  cast  and  throw  the  said  George  Parkman  down, 
unto,  and  upon  the  floor,  with  great  force  and  violence 
there,  giving  unto  the  said  George  Parkman  then  and  there, 
as  well  by  the  beating,  striking,  and  kicking  of  the  said 
George  Parkman,  in  manner  and  form  aforesaid,  as  by  the 
casting  and  throwing  of  the  said  George  Parkman  down,  as 
aforesaid,  several  mortal  strokes,  wounds,  and  bruises,  in  and 
upon  the  head,  breast,  back,  belly,  sides,  and  other  parts  of 
the  body  of  the  said  George  Parkman ;  of  which  said  mortal 
strokes,  wounds,  and  bruises,  the  said  George  Parkman  then 
and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  John  W.  Webster, 
the  said  George  Parkman,  in  manner  and  form  aforesaid,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

27 


314  HOMICIDE.  [chap.  XXVIII. 


Fourth  Count.  —  For  murder,  in  some  way  and  manner,  etc., 

unknown.^ 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  John  W.  Webster,  at  Bos- 
ton aforesaid,  in  the  county  aforesaid,  in  a  certain  build- 
ing known   as  the    Medical    College,   there   situate,   on  the 

twenty-thu'd  day  of  November  in  the  year  of  our  Lord , 

in  and  upon  one  George  Parkman,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  make  an  assault ;  and  the 
said  George  Parkman,  in  some  way  and  manner,  and  by  some 
means,  instruments,  and  weapons,  to  the  jurors  unknown,  did 
then  and  there  feloniously,  wilfully,  and  of  malice  afore- 
thought, deprive  of  life ;  so  that  the  said  George  Parkman, 
then  and  there  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  John  W.  Webster,  the 
said  George  Parkman,  in  the  manner,  and  by  the  means  afore- 
said, to  the  said  jurors  unknown,  then  and  there,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder ; 
against  the  peace  of  the  Commonwealth  aforesaid,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


14.  For  murder,  by  shooting  with  a  pistol. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.  a  certain  pistol,  then  and  there  charged  with  gun- 
powder and  one  leaden  bullet,  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  discharge  and  shoot 
ofl',  to,  against,  and  upon  the  said  E.  F.,  and  that  the  said  C. 
D.,  with  the  leaden  bullet  aforesaid,  out  of  the  pistol  afore- 

« 

'  Ante,  p.  244,  245,  and  note. 


CHAP.  XXVIII.]  HOMICIDE.  315 

said,  then  and  there,  by  the  force  of  the  gunpowder  aforesaid, 
by  the  said  C.  D.  discharged  and  shot  off  as  aforesaid,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  strike,  penetrate,  and  wound  the  said  E.  F.  in  and  upon 
the  right  side  of  the  belly  of  the  said  E.  F.,  near  the  right 
hip  of  the  said  E.  F.,  giving  to  the  said  E.  F.  then  and  there, 
with  the  leaden  bullet  aforesaid,  so  as  aforesaid  discharged 
and  shot  out  of  the  pistol  aforesaid,  by  the  said  C.  D.  in  and 
upon  the  right  side  of  the  belly  of  the  said  E.  F.,  near  the 
said  right  hip  of  the  said  E.  F.,  one  mortal  wound,  of  the 
depth  of  four  inches,  and  of  the  breadth  of  half  an  inch  ;  of 
which  said  mortal  wound  the  said  E.  F.  then  and  there  in- 
stantly died.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  C.  D.  the  said  E.  F,,  in  the 
manner  and  by  the  means  aforesaid,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  kill  and  murder ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

15.  For  murder,  by  cutting  the  throat. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.,  etc.,  spinster,  on  the  first  day  of  June  in  the  year  of 

our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  make  an  assault ;  and 
that  the  said  C.  D.,  with  a  certain  knife,  the  throat  of  the  said 
E.  F.  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  strike  and  cut ;  and  that  the  said  C.  D.,  with  the  knife 
aforesaid,  by  the  striking  and  cutting  aforesaid,  did  then  and 
there  give  to  the  said  E.  F.,  in  and  upon  the  said  throat  of 
the  said  E.  F.,  one  mortal  wound,  of  the  length  of  three 
inches,  and  of  the  depth  of  two  inches ;  of  which  said  mortal 
wound,  the  said  E.  F.  from  the  said  first  day  of  June  in  the 
year  aforesaid,  to  the  first  day  of  July  in  the  year  aforesaid, 
at  B.  aforesaid,  in  the  county  aforesaid,  did  languish,  and  lan- 
guishing did  live;  on  which  said  first  day  of  July  aforesaid, 
in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 


316  HOMICIDE.  [chap.  XXVIII. 

the  said  E.  F.,  of  the  said  mortal  wound,  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.  the  said  E.  F.,  in  manner  and  form  aforesaid,  then 
and  there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  kill  and  murder ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


16.  For  murder^  by  throwing'  a  knife. 

The  jurors,  etc.,  upon  their  oath  aforesaid,  present,  that  C. 
D.  late  of,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of 

our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault;  and  that 
the  said  C.  D.,  with  a  certain  large  knife,  at  and  against  the 
said  E.  F.  then  and  there  feloniously,  wilfully,  and  of  his  mal- 
ice aforethought,  did  qast  and  throw,  and  the  said  E.  F.,  with 
the  knife  aforesaid,  so  cast  and  thrown  as  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  strike  and  stab,  and  that  the  said  C.  D.,  with  the  knife 
aforesaid,  so  cast  and  thrown  as  aforesaid,  in  and  upon  the 
left  side  of  the  body  of  the  said  E.  F.  then  and  there  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  strike  and 
stab,  and  that  the  said  C.  D.,  with  the  knife  aforesaid,  so  cast 
and  thrown  as  aforesaid,  did  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  give  to  the  said  E.  F.', 
in  and  upon  the  left  side  of  the  body  of  the  said  E.  F.  one 
mortal  wound,  of  the  breadth  of  one  inch,  and  of  the  depth 
of  three  inches ;  of  which  said  mortal  wound,  the  said  E.  F. 
then  and  there  instantly  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.  the 
said  E.  F.,  in  manner  and  form  aforesaid,  then  and  there  fe- 
loniously, wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder;  against  the  peace  of  said  Commonwealth,  and 
(Xonlrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


CEAT.  XXVIII.]  HOMICIDE.  317 


17.  For  murder,  hy  casting  a  stone. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.  a  certain  stone,  in  and  upon  the  right  side  of  the 
head,  near  the  right  temple  of  the  said  E.  F.,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  cast 
and  throw ;  and  that  the  said  C.  D.,  with  the  stone  aforesaid, 
so  as  aforesaid  cast  and  thrown,  the  aforesaid  E.  F.  in  and 
upon  the  right  side  of  the  head,  near  the  right  temple  of  the 
said  E.  F.  then  and  there  feloniously,  wilfully,  and  of  his  mal- 
ice aforethought,  did  strike,  penetrate,  and  wound,  giving  to 
the  said  E.  F.,  by  the  casting  and  throwing  of  the  stone  afore- 
said, in  and  upon  the  right  side  of  the  head,  near  the  right 
temple  of  the  said  E.  F.  one  mortal  wound  of  the  length  of 
one  inch,  and  of  the  depth  of  one  inch ;  of  which  said  mor- 
tal wound,  the  said  E.  F.,  from  the  said  ■  day  of  in 
the  year  aforesaid,  to  the  day  of  in  the  year  afore- 
said, at  B.  aforesaid,  in  the  county  aforesaid,  did  languish, 
and  languishing  did  live ;  on  which  said  day  of  in 
the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid, 
the  said  E.  F.  of  the  mortal  wound  aforesaid  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.  the  said  E.  F.,  in  manner  and  form  aforesaid, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

IS.  For  murder,  by  striking  with  a  poker. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 
,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

27* 


318  HOMICIDE.  [chap.  XXVIII. 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.  then  and  there,  with  a  certain  iron  poker,  the  said 

E.  F.,  in  and  upon  the  back  part  of  the  head  of  the  said  E. 

F.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  giving  unto  the  said  E.  F.  then  and 
there,  with  the  said  iron  poker,  by  the  stroke  aforesaid,  in 
manner  aforesaid,  in  and  upon  the  back  part  of  the  head  of 
the  said  E.  F.  one  mortal  wound,  of  the  length  of  three 
inches,  and  of  the  depth  of  one  inch ;  of  which  said  mortal 
wound,  the  said  E.  F.,  on  the  said  day  of  at  B. 
aforesaid,  in  the  county  aforesaid,  did  languish,  and  languishing 
did  live ;  on  which  same  day  of  aforesaid,  in  the 
year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  the  said 
E.  F.  of  the  said  mortal  wound  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C. 
D.  the  said  E.  F.,  in  manner  and  form  aforesaid,  feloniously, 
willfully,  and  of  his  malice  aforethought,  did  kill  and  murder ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

19.  For  murder,  hy  heating  unth  fists,  and  kicking  on  the 
ground. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  beat,  and  kick  the  said  E.  F. 
with  his  hands  and  feet,  in  and  upon  the  head,  breast,  back, 
belly,  sides,  and  other  parts  of  the  body  of  the  said  E.  F., 
and  (lid  ilien  and  there  feloniously,  wilfully,  and  of  his  malice 
aforclliought,  cast  and  throw  the  said  E.  F.  down,  unto,  and 
u})<)ii  the  ground,  with  great  force  and  violence  there,  giving 
1o  Wic.  said  E.  F.  then  and  there,  as  well  by  the  beating,  strik- 
ing, and  kicking  of  the  said  E.  F.,  in  manner  and  form  afore- 


CHAP.  XXVIII.]  HOMICIDE.  319 

said,  as  by  the  casting  and  throwing  of  the  said  E.  F.  down 
as  aforesaid,  several  mortal  strokes,  wounds,  and  bruises,  in 
and  upon  the  head,  breast,  back,  belly,  sides,  and  other  parts 
of  the  body  of  the  said  E.  F.,  to  wit,  one  mortal  wound  on 
the  left  side  of  the  belly  of  the  said  E.  F.  of  the  length  of 
five  inches,  and  of  the  depth  of  three  inches,  here  slate  the 
other  wounds  in  the  same  way,  of  which  said  last-mentioned 
mortal  strokes,  wounds,  and  bruises,  the  said  E.  F.,  from  the 
said         day  of  aforesaid,  to  the         day  of  in  the 

year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  did 
languish,  and  languishing  did  live ;  on  which  said  day  of 
in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 
aforesaid,  the  said  E.  F.  of  the  mortal  strokes,  wounds,  and 
bruises  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  C.  D.  the  said  E. 
F.,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  kill  and  murder;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

20.  For  murder,  hy  choking  and  strangling. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore-* 

said,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault ;  and  that  the  said 
C.  D.,  with  both  his  hands  about  the  neck  and  throat  of  the 
said  E.  F.,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  fix  and  fasten  ;  and  that  the  said  C. 
D.,  with  both  his  hands  so  as  aforesaid  fixed  and  fastened 
about  the  neck  and  throat  of  the  said  E.  F.,  the  said  E.  F. 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  choke  and  strangle ;  of  which  said  choking  and 
strangling,  the  said  E.  F.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.,  the  said  E.  F.  then  and  there,  in  manner  and 
form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 


320  HOMICIDE.  [chap.  XXVIII. 

thought,  did  kill  and  murder ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


21.  For  murder,  by  riding  over  a  person  iviili  a  horse. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.  then  and  there  riding  upon  a  horse,  the  said  horse, 
in  and  upon  the  said  E.  F.  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  ride  and  force,  and 
the  said  E.  F.,  with  the  horse  aforesaid,  then  and  there,  by 
such  riding  and  forcing  as  aforesaid,  did  throw  to  the  ground ; 
by  means  whereof,  the  said  horse,  with  his  hinder  feet,  the 
said  E.  F.,  so  thrown  to  and  upon  the  ground  as  aforesaid,  in 
and  upon  the  back  part  of  the  head  of  the  said  E.  F.  did 
then  and  there  strike  and  kick,  thereby  then  and  there  giving 
to  the  said  E.  F.,  in  and  upon  the  back  part  of  the  head  of 
him  the  said  E.  F.  one  mortal  fracture  and  contusion  of  the 
breadth  of  two  inches,  and  of  the  depth  of  one  inch  ;  of 
which  said  mortal  fracture  and  contusion,  the  said  E.  F.  then 
^and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  C.  D.  the  said  E. 
F.,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  kill  and  murder ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

22.  For  murder,  by  strangling  with  a  handkerchief. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  llrst  day  of  June  in  tiie  year  of  our  Lord 

,  wilh  force   and  arms,   at  B.  aforesaid,   in   the   county 

aforesaid,  in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault;  and  that  the 


CHAP.  XXVIII.]  HOMICIDE.  821 

said  C.  D.,  with  a  handkerchief,  about  the  neck  of  the  said 

E.  F.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  put,  fasten,  and  bind ;  and  that  the  said  C. 
D.,  with  the  said  handkerchief,  about  the  neck  of  the  said  E. 

F.  then  as  aforesaid  put,  fastened,  and  bound,  the  said  E.  F. 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  choke  and  strangle ;  of  which  choking  and 
strangling,  the  said  E.  F.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.,  in  manner  and  form  aforesaid,  the  said  E.  F. 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

23.  Fo)'  the  murder  of  a  bastard  child.)  by  folding  in  a  cloth. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  single  woman,  on  the  first  day  of  June  in  the  year  of 

our  Lord ,  at  B.  aforesaid,  in  the  county  aforesaid,  being 

pregnant  with  a  certain  female  child,  afterwards,  to  wit,  on 
the  same         day  of  in  the  year  aforesaid,  at  B.  afore- 

said, in  the  county  aforesaid,  the  said  female  child,  alone  and 
secretly  from  her  body,  did  bring  forth  aKve,  which  said  fe- 
male child,  so  born  alive,  was,  by  the  laws  of  this  Common- 
wealth, to  wit,  the  Commonwealth  of  M.,  a  bastard ;  and  that 
the  said  C.  D.  afterwards,  to  wit,  on  the  same  day  of 
in  the  year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  in  and  upon  the  said  female  bastard 
child,  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  make  an  assault ;  and  that  the  said  C.  D.,  the  said  female 
bastard  child,  in  a  certain  linen  cloth,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  put,  place,  fold,  and  wrap 
up ;  by  means  of  which  said  putting,  placing,  folding,  and 
wrapping  up  of  the  said  female  bastard  child,  in  the  said 
linen  cloth,  by  the  said  C.  D.  as  aforesaid,  the  said  female 
bastard   child  was  then  and  there  choked,  suffocated,  and 


322  HOMICIDE.  [chap.  XXVIII. 

smothered;  of  which  said  choking,  suffocation,  and  smother- 
ing, the  said  female  bastard  child  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  C.  D.  the  said  female  bastard  child,  in 
manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  kill  and  murder;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


24.  For  murder,  by  throicing  a  bastard  child  into  a  privy. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  single  woman,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  being  pregnant  with  a  female  child,  afterwards,  to 

wit,  on  the  same         day  of  in  the  year  aforesaid,  at  B. 

aforesaid,  in  the  county  aforesaid,  the  said  female  child,  alone 
and  in  secret  from  her  body,  did  bring  forth  alive,  which  said 
female  child,  so  born  alive,  was,  by  the  laws  of  this  Common- 
wealth, to  wit,  the  Commonwealth  aforesaid,  a  bastard ;  and 
that  the  said  C.  D.  afterwards,  to  wit,  on  the  same  day 
of  in  the  year  aforesaid,  with  force  and  arms,  at  B. 

aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  fe- 
male bastard  child,  feloniously,  wilfully,  and  of  her  malice 
aforethought,  did  make  an  assault ;  and  that  the  said  C.  D. 
the  said  female  bastard  child,  into  a  certain  privy  there  sit- 
uate, wherein  was  a  great  quantity  of  human  excrements  and 
other  filth,  then  and  there  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  cast  and  throw ;  by  reason  of  which 
said  casting  and  throwing  of  the  said  female  bastard  child 
into  the  said  privy,  by  the  said  C.  D.,  in  manner  as  aforesaid, 
the  said  female  bastard  child,  in  the  said  privy,  with  the  excre- 
ments and  filth  aforesaid,  was  then  and  there  choked  and 
suffocated ;  of  which  said  choking  and  suffocation  the  said 
female  bastard  child  then  and  there  instantly  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  B.  the  said  female  bastard  child,  in  manner  and 
form  aforesaid,  feloniously,  wilfully,  and  of  her  malice  afore- 


CHAP,  xxviil]  homicide.  323 

thought,  did  kill  and  murder  ;  a'gainst  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

25.  For  the  murder  of  a  bastard  child  by  strangling. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  single  woman,  on  the         day  of  June  in  the  year  of  our 

Lord ,  being  pregnant  with  a  male  child,  the  same  day 

and  year,  at  B.  aforesaid,  in  the  county  aforesaid,  did  bring 
forth  the  said  child  alive,  of  the  body  of  the  said  C.  D.,  alone 
and  in  secret,  which  said  male  child,  so  being  born  alive,  was, 
by  the  laws  of  this  Commonwealth,  to  wit,  the  Common- 
wealth aforesaid,  a  bastard ;  and  that  the  said  C.  D.  after- 
wards, to  wit,  on  the  same  day  of  in  the  year  afore- 
said, with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, in  and  upon  the  said  male  child,  in  the  peace  of  the  said 
Commonwealth  then  and  there  being,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  make  an  assault ;  and  that  the 
said  C.  D.,  with  both  her  hands  about  the  neck  of  the  said  child 
then  and  there  fixed,  the  said  child  then  and  there  feloniously, 
wilfully,  and  of  her  malice  aforethought,  did  choke  and  strangle ; 
of  which  said  choking  and  strangling,  the  said  child  then  and 
there  instantly  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  C.  D.  the  aforesaid  male 
child,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and 
of  her  malice  aforethought,  did  kill  and  murder ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

26.    For  the   murder    of   a  bastard    child,    by  hiding  and 

starving  it. 

The  jurors  aforesaid,  upon  their  oath  present,  that  C.  D. 
late  of,  etc.,  single  woman,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  being  pregnant  with  a  male  child,  the 

same  day  and  year  aforesaid,  at  B.  aforesaid,  did  bring  forth 
the  said  child  alive,  of  the  body  of  the  said  C.  D.,  alone  and 
in  secret,  which  said  male  child,  so  being  born  alive,  was  by 


324  HOMICIDE.  [chap.  XXVIII. 

the  laws  of  this  Commonwealth,  to  wit,  the  Commonwealth 
aforesaid,  a  bastard ;  and  that  the  said  C.  D.,  on  the  day 
of  in  the  year  aforesaid,  at  B.  aforesaid,  in  the  county 

aforesaid,  with  force  and  arms,  in  and  upon  the  said  child, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
make  an  assault;  and  that  the  said  C.  D.  the  said  male  child, 
so  being  alive,  did  then  and  there  take  and  carry  to  a  certain 
shed  there  situate,  and  the  same  child,  so  being  alive,  did 
then  and  there,  in  the  said  shed,  feloniously,  wilfully,  and  of 
her  malice  aforethought,  hide,  secrete,  and  conceal ;  and  the 
same  child,  so  being  alive,  and  so  being  hidden,  secreted,  and 
concealed,  the  said  C.  D.  did  then  and  there  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  leave  and  desert,  and 
to  nourish,  sustain,  and  provide  for  the  said  male  child,  so 
being  alive,  the  said  C.  D.  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  wholly  neglect  and  refuse ;  by  reason 
of  which  said  hiding,  secreting,  and  concealing  the  same 
child,  in  manner  and  form  aforesaid,  by  the  said  C.  D.,  and 
of  the  said  refusal  and  neglect  of  the  said  C.  D.  to  nourish, 
sustain,  and  provide  for  the  said  male  child,  the  said  child 
then  and  there  instantly  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.  the  said 
male  child,  in  manner  and  form  aforesaid,  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  did  kill  and  murder ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


27.  For  murder.)  hy  drowning. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  day  of  in  the  year  of  our  Lord 
,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, in  and  upon  one  E.  F.  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault;  and  that  the  said 
C  D.  did  ilu'M  and  th(>re  feloniously,  wilfully,  and  of  his  mal- 
ice aforctlionglit,  cast,  throw,  and  j)nsh  the  said  E.  E.  into  a 
certain  j)()nd  liicrc  silnate,  \\  lirrcin  was  a  great  (jiiantity  of 
water ;  by  means  of  which  said  casting,  throwing,  and  push- 


CHAP.  XXVIII.]  HOMICIDE.  325 

ing  of  the  said  E.  F.  into  the  pond  aforesaid,  by  the  said  C. 
D.,  in  form  aforesaid,  the  said  E.  F.,  in  the  pond  aforesaid, 
with  the  water  aforesaid,  was  then  and  there  choked,  suffo- 
cated, and  drowned ;  of  which  said  choking,  suffocation,  and 
drowning,  the  said  E.  F.  then  and  there  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  C.  D.,  in  manner  and  form  aforesaid,  the  said  E.  F. 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

28.  For  murder,  by  poisoning. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  yeoman,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  privately  and  secretly  convey  into  and  leave  a  great  quan- 
tity of  white  arsenic,  being  a  deadly  poison,  in  the  dwelling- 
house  of  the  said  E.  F.  there  situate ;  and  that  the  said  C.  D. 
afterwards,  to  wit,  on  the  same  day  and  year  aforesaid,  the 
same  white  arsenic,  with  a  certain  quantity  of  beer,  in  the 
same  house  then  and  there  being,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  put,  mix,  and 
mingle,  the  said  C.  D.  then  and  there  well  knowing  the  said 
white  arsenic  to  be  a  deadly  poison ;  and  that  the  said  E.  F. 
afterwards,  to  wit,  on  the  same  day  and  year  aforesaid,  at  B. 
aforesaid,  in  the  county  aforesaid,  did  take,  drink,  and  swallow 
down  a  great  quantity  of  the  said  beer,  with  which  the  said 
white  arsenic  was  mixed  and  mingled  by  the  said  C.  D.  as 
aforesaid,  the'  said  E.  F.  not  knowing  that  there  was  any  white 
arsenic,  or  other  poisonous  ingredient,  mixed  or  mingled  with 
the  said  beer  as  aforesaid;  by  means  whereof  the  said  E.  F.  then 
and  there  became  sick  and  distempered  in  his  body,  and  the 
said  E.  F.,  of  the  poison  aforesaid,  so  by  him  taken,  drank,  and 
swallowed  down  as  aforesaid,  and  of  the  sickness  occasioned 
thereby,  from  the  said        day  of  in  the  year  aforesaid, 

28 


326  HOMICIDE.  [chap,  xxvin. 

until  the  twenty-eighth  day  of  said  month,  in  the  same  year, 
at  B.  aforesaid,  in  the  county  aforesaid,  did  languish,  and  lan- 
guishing did  live,  on  which  said  twenty-eighth  day  of  in 
the  year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  the 
said  E.  F.,  of  the  poison  aforesaid,  and  of  the  sickness  and 
distemper  occasioned  thereby,  died.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.,  in 
manner  and  form  aforesaid,  the  said  E.  F.  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  poison,  kill,  and 
murder ;  against  the  peace  of  the  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  that  case  made  and 
provided. 

29.  For  murder,  by  placing  poison,  so  as  to  be  mistaken  for 

medicine. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  a  certain  quantity  of  arsenic,  to  wit,  two  drachms 
of  arsenic,  being  a  deadly  poison,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  put,  infuse,  mix,  and  mingle  in 
and  together  with  water,  the  said  C.  D.  then  and  there  well 
knowing  the  said  arsenic  to  be  a  deadly  poison ;  and  that  the 
said  C.  D.  the  said  arsenic,  so  as  aforesaid  put,  infused  in,  and 
mixed  and  mingled  in  and  together  with  water,  into  a  certain 
glass  phial,  did  put  and  pour ;  and  the  said  glass  phial,  with 
the  said  arsenic  put,  infused  in,  and  mixed  and  mingled  in  and 
together,  with  water  as  aforesaid  contained  therein,  then  and 
there,  to  wit,  on  the  same  day  of  in  the  year  aforesaid, 
with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  in  the  lodg- 
ing-room of  the  said  E.  F.  did  put  and  place,  in  tiie  place  and 
stead  of  a  certain  salutary  medicine  then  lately  before  prescribed 
and  made  up  for  the  said  E.  F.,  and  to  be  taken  by  the  said  E. 
F.,  the  said  C  1).  then  and  there  feloniously,  wilfully,  and  of 
his  )iialic.e  aforethought,  intending  that  the  said  E.  F.  should 
driniv  and  swallow  down  into  his  body  the  said  arsenic,  put, 
infused,  mixed,  and  mingled  in  and  together  with  water  as 


CHAP.  XXVIII.]  HOMICIDE.  327 

aforesaid,  contained  in  the  said  glass  phial,  by  mistaking  the 
same  as  and  for  the  said  salutary  medicine,  so  prescribed  and 
made  up  for  the  said  E.  F.,  and  to  be  by  the  said  E.  F.  taken 
as  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  E.  F.,  not  knowing  the 
said  arsenic,  put,  infused  in,  and  mixed  together  with  water 
as  aforesaid,  contained  in  the  said  glass  phial,  so  put  and 
placed  by  the  said  C.  D.,  in  the  lodging-room  of  the  said  E. 
F.,  in  the  place  and  stead  of  the  said  salutary  medicine,  then 
lately  before  prescribed  and  made  up  for  the  said  E.  F.,  to  be 
taken  by  the  said  E.  F.  in  maimer  aforesaid,  to  be  a  deadly 
poison,  but  believing  the  same  to  be  the  true  and  real 
medicine,  then  lately  before  prescribed  and  made  up  for, 
and  to  be  taken  by  the  said  E.  F.,  afterwards,  to  wit,  on 
the  same        day  of  in  the  year  aforesaid,  at  B.  afore- 

said, in  the  county  aforesaid,  the  said  arsenic,  so  as  aforesaid 
put,  infused  in,  and  mixed  together  with  water,  by  the  said 

C.  D.  as '  aforesaid,  contained  in  the  said  glass  phial,  so  put 
and  placed  by  the  said  C.  D.,  in  the  lodging-room  of  the  said 

E.  F.,  in  the  place  and  stead  of  the  said  medicine,  then  lately 
before  prescribed  and  made  up  for  the  said  E.  F.,  the  said  E. 

F.  did  take,  drink,  and  swallow  down  into  his  body ;  by 
means  of  which  said  taking,  drinking,  and  swallowing  down 
into  the  body  of  the  said  E.  F.  of  the  said  arsenic,  so  as  afore- 
said put,  infused  in,  and  mixed  together  with  water  by  the 
said  C.  D.  as  aforesaid,  the  said  E.  F.  then  and  there  became 
sick  and  distempered  in  his  body ;  of  which  sickness  and  dis- 
temper of  body,  occasioned  by  the  said  taking,  drinking,  and 
swallowing  down  into  the  body  of  the  said  E.  F.,  and  of  the 
said  arsenic,  so  as  aforesaid  put,  infused  in,  and  mixed  to- 
gether with  water  by  the  said  C.  D.  as  aforesaid,  the  said 
E.  F.  on  the  said  day  of  in  the  year  aforesaid,  at  B. 
aforesaid,  in  the  county  aforesaid,  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C. 

D.  the  said  E.  F.,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  poison,  kill,  and 
murder ;  against  the  peace  of  said  Commonweafth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


CHAPTER    XXIX. 


HOUSES   OF  ILL  FAME. 

The  keeping  of  a  house  of  ill  fame  is  indictable  as  a  pub- 
lic nuisance,  or  offence  against  the  public  order  and  economi- 
cal regimen  of  the  State.i  So  the  letting  of  a  house  to  a 
woman  of  ill  fame,  knowing  her  to  be  such,  with  the  intent 
that  it  should  be  used  for  the  purposes  of  prostitution,  is  an 
indictable  offence  at  common  law.^  In  some  of  the  United 
States,  these  offences  are  punishable  by  statute.  A  married 
woman,  who  lives  apart  from  her  husband,  may  be  indicted 
alone,  for  keeping  a  house  of  ill  fame.^ 

1.  For  keeping  a  house  of  ill  fame.  —  Rev.  Sts.  of  Mass.  ch. 
130,  §8;  St.  1849,  ch.  84.4 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  M.,  laborer,^  on  the  fu'st  day  of  June  in  the 

*  1  Gabbett,  Crim.  Law,  289  ;  1  Deacon,  Crim.  Law,  136,  It  is  not  nec- 
essary to  allege  that  the  house  was  kept  for  lucre  or  gain.  See  Jennings  v. 
The  Commonwealth,  1 7  Pickering,  80 ;  The  State  v.  Bailey,  1  Foster  (N. 
H.),  343 ;  The  State  v.  Nixon,  18  Vermont,  70. 

*  Commonwealth  v.  Harrington,  3  Pickering,  26 ;  Smith  i;.  The  State,  6 
Gill,  425.  In  New  York,  the  lessor  may  be  indicted  as  the  keeper  of  the 
house,  and  the  lessee  may  be  joined  with  him  in  the  indictment.  The 
People  V.  Erwin,  4  Dcnio,  129. 

'  Commonwealth  r.  Lewis,  1  IVIetcalf,  151.  But  a  woman  is  not  indictable 
for  keeping  a  bawdy  house,  merely  because  she  is  unchaste,  lives  by  herself, 
and  habitually  admits  one  or  many  to  illicit  intercourse  with  her.  The  State 
V.  Evans,  5  Iredell,  003. 

*  This  count  was  held  sufTioIent  in  Commonwealth  v.  Ashley,  2  Gray. 

'  When  a  w»ni,in  is  described  as  C.  J),  "wife  of  J.  N.,"  these  words  are 
mere  addition,  and,  if  wrong,  can  only  be  excepted  to  by  plea  in  abatement. 
Commonwealth  v.  Lewis,  1  Metcalf,  151. 


CHAP.  XXIX.]  HOUSES   OF   ILL  FAME*  329 

year  of  our  Lord ,  at  B.  aforesaid,^  in  the  county  afore- 
said, and  on  divers  other  days  and  times  between  that  day 
and  the  day  of  the  finding  of  this  indictment,  at  B.  aforesaid, 
in  the  county  aforesaid,'  did  keep  a  certain  house  of  ill  fame, 
then  and  there  resorted  to  for  the  purpose  of  public  prostitu- 
tion and  lewdness ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


2.  For  letting'  a  house  to  a  woman  of  ill  fame,  at  common  law. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  gentleman,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,^  at  B.  aforesaid,  in  the  county 

aforesaid,  for  lucre  and  gain,  knowingly  and  designedly  did 
let^  a  certain  house  there  situate  to  one  J.  N.,*  the  said  J.  N. 
then  and  there  being  a  woman  of  ill  fame,  and  the  said  C.  D. 
then  and  there  knowing  her  to  be  such,  with  intent  that  the 
said  J.  N.  should  then  and  there  keep  said  house  as  a  house 
of  ill  fame,  for  the  purpose  of  public  prostitution  and  lewd- 
ness ;  to  the  common  nuisance,  etc.,  and  against  the  peace,  etc. 


^  This  is  a  local  offence,  and  must  be  described  as  committed  in  a  particular 
town,  and  the  proof  must  be  confined  to  the  town.  A  more  particular  de- 
scription of  the  house  is  unnecessary.     The  State  v.  Nixon,  18  Vermont,  70. 

^  The  time  of  the  offence  must  be  charged.  The  offence  consists  of  [etting 
the  house ;  and  there  is  a  distinction  between  the  letting  and  occupancy  of 
a  house  for  such  purpose.  Commonwealth  v.  Moore,  Mass.  Sup.  Jud.  Ct. 
Suffolk,  Nov.  T.  1853. 

^  It  is  not  necessary  to  allege  when  the  lease  commenced,  or  when  it  was 
to  end.     Smith  v.  The  State,  6  Gill,  425. 

*  It  is  necessary  to  allege  to  whom  the  house  was  let,  or  that  it  was  let  to 
some  person  to  the  jurors  unknown.  Commonwccilth  v.  Moore,  Mass.  Sup. 
Jud.  Ct.  Nov.  T.  1853. 


CHAPTEK    XXX. 

liTCEST. 

Indictment  for  incest.  —  Rev.  Sts.  of  Mass.  ch.  130,  §  13.^ 

The  jurors,   etc.,   upon   their   oath   present,   that    C.   D. 
late  of  B.  in  the  county  of   S.,  on  the  first  day  of  June 

in  the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  did  commit  the  crime  of  fornication,  by  then  and 
there  having  carnal  knowledge  of  the  body  of  one  A.  B., 
the  said  A.  B.  and  the  said  C.  D.  each  being  then  and  there 
single  and  unmarried,  and  the  said  A.  B.  and  C.  D.  not 
being  then  and  there  lawfully  married  to  each  other,  and  the 
said  A.  B.  and  the  said  C.  D.  each  being  then  and  there 
within  the  degrees  of  consanguinity  within  which  marriages 
are  prohibited  and  declared  by  law  to  be  incestuous  and  void, 
to  wit,  the  said  A.  B.  being  tlien  and  there  the  brother  of  the 
said  C.  D.,  and  the  said  C.  D.  being  then  and  there  the  sister 
of  the  said  A.  B.,  and  the  said  A.  B.  and  C.  D.  both  being 
then  and  there  the  children  of  one  J.  N.  and  of  J.  S.,  the  wife 
of  the  said  J.  N. ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


*  In  Commonwealth  v.  Goodhue,  2  Metcalf,  103,  the  defendant,  who  was 
indicted  for  a  rape  alleged  to  have  been  committed  upon  his  own  daughter, 
was  convicted  of  incest,  the  jury  having  returned  a  verdict  that  the  defend- 
ant was  guilty  of  having  unlawfully  had  carnal  knowledge  of  the  body  of 
his  daughter,  but  not  by  force  and  against  her  will.  And  see  Mass.  llcv.  Sts. 
ch.  137,  §  11  ;  Commonwealth  v.  Dunn,  19  rickering,  479. 


CHAPTER    XXXI. 

LARCENY. 

In  East's  Pleas  of  the  Crown,  this  offence  is  defined  to  be 
"the  wrongful  or  fraudulent  taking  and  carrying  away  by 
any  person  of  the  mere  personal  goods  of  another,  from  any 
place,  with  a  felonious  intent  to  convert  them  to  his  (the 
taker's)  own  use,  and  make  them  his  own  property,  without 
the  consent  of  the  owner."  ^  But  in  a  very  recent  English 
case,  Mr.  Baron  Parke  said  this  definition  was  defective,  in 
not  stating  what  is  the  meaning  of  the  word  "  felonious," 
which,  he  said,  "  may  be  explained  to  mean,  that  there  is  no 
color  of  right  or  excuse  for  the  act;  and  the  'intent'  must  be 
to  deprive  the  owner,  not  temporarily,  but  permanently,  of  his 
property."  ^ 

The  indictment  alleges,  that  the  defendant  on,  etc.,  at,  etc., 
one  silver  tankard,  of  the  value  of  fifty  dollars,  of  the  goods 
and  chattels  of  one  J.  N.,  then  and  there  in  the  possession 
of  the  said  J.  N.  being  found,  feloniously  did  steal,  take,  and 
carry  away. 

When,  as  in  larceny,  or  receiving  stolen  goods,  personal 
chattels  are  the  subject  of  an  offence,  they  must  be  described 
specifically  by  the  names  usually  appropriated  to  them,  and 
the  number  and  value  of  each  species  or  particular  kind  of 
goods  stated.  In  this  statement,  certainty  to  a  common  in- 
tent, as  it  is  technically  termed,  is  generally  sufficient ;  which 
means  such  certainty  as  will  enable  the  jury  to  decide 
whether  the  chattel  proved  to  have  been  stolen  is  the  same 

^  2  East,  P.  C.  553. 

*  Regina  v.  Holloway,  2  Carrlngton  &  Klirwan,  942 ;  1  Denison,  C.  C.  370; 
1  Temple  &  Mew,  C.  C.  40,  (1849). 


332  LARCENY.  [chap.  XXXI. 

with  that  upon  which  the  indictment  is  founded,  and  show 
judicially  to  the  court  that  it  could  have  been  the  subject- 
matter  of  the  offence  charged,  and  thus  secure  the  defendant 
from  any  subsequent  proceedings  for  the  same  cause,  after  a 
conviction  or  acquittal.^  And  therefore  to  charge  A.  with 
having  feloniously  taken  and  carried  away  the  goods  of  B., 
will  not  be  sufficient. 

The  common  and  ordinary  acceptation  governs  the  descrip- 
tion, and  it  is  sufficient  if  it  be  one  that  is  usual  or  well 
known.^  Goods  may  be  described  by  the  name  by  which 
they  are  known  in  trade.^  Ingots  of  tin,  or  a  bar  of  iron  may 
be  described  as  so  many  pounds  weight  of  tin  or  iron.  But 
where  an  article  has  obtained,  in  common  parlance,  a  par- 
ticular name  of  its  own,  it  is  wrong  to  describe  it  by  the 
name  of  the  material  of  which  it  is  composed.  Thus,  it 
would  be  a  misdescription  to  describe  cloth  as  so  many 
pounds  weight  of  woo],  or  sovereigns  as  so  many  ounces  of 
gold.*  An  indictment  charging  a  larceny  of  a  book  is  suffi- 
cient, and  the  title  of  it  need  not  be  stated.^  It  is  sufficient 
to  describe  the  property  as  "  one  hide,  of  the  value,"  etc. ;  ^  so 
a  charge  of  stealing  "  a  parcel  of  oats,"  is  sufficiently  certain.'^ 
On  the  trial  of  an  indictment  for  stealing  "  one  sheep,"  some 
of  the  witnesses  stated  the  animal  to  be  a  sheep,  others  a 
Iamb.  It  was  between  nine  and  twelve  months  old.  The 
jury  convicted  the  prisoner,  and  found  that,  in  common  par- 
lance, according  to  the  usual  mode  of  describing  such  ani- 
mals, it  would  be  called  a  lamb.  On  a  case  reserved,  the  con- 
viction was  held  right,  the  word  "  sheep  "  being  general.  The 
principle  of  this  decision  is,  that  an  indictment  describing  a 


^  Tlie  People  v.  Jackson,  8  Barbour,  637. 

*  Commonwealth  v.  James,  1  Pickering,  375. 

»  Rex  V.  Nibbs,  1  Moody,  C.  C.  25 ;  The  People  v.  Jackson,  8  Barbour, 
637,  C'll  ;  The  State  r.  Clark,  8  Iredell,  22C. 

*  Ileglna  v.  Rlansficld,  Carrinifton  iS:  IMarslmian,  140. 
''  The  State  v.  Logan,  1  IMissoiiri,  377. 

'  The  State  v.  Dowell,  3  Gill  &  Johnson,  310;  The  People  v.  Jackson,  8 
Barbour,  G37,  641. 
'  The  State  v.  Brown,  1  Devcrcaux,  137. 


CHAP.  XXXI.]  LARCENY.  333 

thing  by  its  generic  term,  is  supported  by  proof  of  a  species 
which  is  clearly  comprehended  within  such  description,  not- 
withstanding that  the  statute  under  which  the  indictment  is 
framed,  mentions  both  the  genus  and  the  species.^ 

An  indictment  for  stealing  chattels  which  are  the  subject 
of  larceny  only  in  particular  cases  or  under  certain  circum- 
stances, nniust  show  that  they  fall  within  the  requisite  descrip- 
tion. Thus,  an  indictment  for  stealing  "  three  eggs "  was 
held  to  be  insufficient,  because  only  the  eggs-  of  animals 
domitcB  natures  are  the  subject  of  larceny .^ 

Where  the  larceny  of  live  animals  is  charged,  it  is  not  nec- 
essary to  state  them  to  be  alive,  because  the  law  will  presume 
them  to  be  so,  unless  the  contrary  be  stated.^  Thus,  an  in- 
dictment for  stealing  two  turkeys  was  held  that  it  must  be 
taken  to  mean  living  turkeys.^  But  if,  when  stolen,  the  ani- 
mals were  dead,  that  fact  must  be  stated,  for  as  the  law 
would  otherwise  presume  them  to  be  alive,  the  variance  is 
fatal.^  Where  the  defendant  was  indicted  for  stealing  a 
pheasant,  of  the  value  of  forty  shillings,  of  the  goods  and 
chattels  of  the  prosecutor,  it  was  held,  that,  from  the  descrip- 
tion, it  must  be  taken  to  be  a  pheasant  alive,  and  so  fe?'(B 


*  Regina  v.  Spicer,  1  Denison,  C.  C.  82,  and  Reporter's  note ;  1  Carring- 
ton  &  Kirwan,  G99 ;  Regina  v.  Aldridge,  4  Cox,  C.  C.  143 ;  overruling  Rex 
V.  Looms,  1  Moody,  C.  C.  160  ;  Rex  v.  Puddifoot,  1  Moody,  C.  C.  160.  See 
also  Regina  v.  McCuUey,  2  Moody,  C.  C.  34;  2  Lewin,  C.  C.  272;  Regina 
V.  Barran,  Jebb,  C.  C.  244 ;  Regina  v.  Bannam,  Crawford  &  DIx,  C.  C.  147 ; 
The  State  ii.  Tootle,  2  Harrington,  541.  The  case  of  Regina  v.  Spicer 
seems  to  show,  that  the  thing  stolen  need  not  now  be  alleged  in  the  indict- 
ment with  so  great  a  degree  of  certainty  as  was  formei'ly  deemed  requisite. 
See  Reporter's  note  to  Regina  v.  Bond,  1  Denison,  C.  C.  528. 

^  Regina  v.  Cox,  1  Carrlngton  &  Kirwan,  494.  In  Regina  v.  Gallears,  1 
Temple  &  Mew,  C.  C.  196 ;  2  Carrington  &  Kirwan,  981 ;  1  Denison,  C.  C. 
502 ;  3  Cox,  C.  C.  572,  Chief  Baron  Pollock  doubted  the  correctness  of  the 
ruling  In  this  case. 

*  Rex  V.  Edwards,  Russell  &  Ryan,  C.  C.  497.  See  Regina  v.  Hogan,  1 
Crawford  &  DIx,  C  C.  366  ;  Rex  v.  Williams,  1  Moody,  C.  C.  107;  Gordon 
V.  Jenney,  15  Massachusetts  (Rand's  ed.),  204,  and  note. 

*  Rex  I'.  Halloway,  1  Carrlngton  &  Payne,  128. 

*  Rex  V.  Edwards,  Russell  &  Ryan,  C.  C.  497. 


334  LARCENY.  [chap.  XXXI. 

naturae,  and  therefore  not  the  subject  of  larceny ;  and  to  show 
it  to  be  felony,  the  indictment  must  show  it  to  have  been 
dead  or  reclaimed,  and  the  stating  it  to  be  "  the  goods  and 
chattels  "  did  not  supply  the  deficiency .^  But  if  an  animal 
have  the  same  appellation,  whether  it  be  alive  or  dead,  and  it 
makes  no  difference  as  to  the  charge  whether  it  were  alive  or 
dead,  it  may  be  called  when  dead,  by  the  appellation  appli- 
cable to  it  when  alive.^  "  The  doctrine  respecting  the  descrip- 
tion of  animals  in  an  indictment,"  says  Patteson,  J.,  in  a  very 
recent  case,  "  applies  only  to  live  animals,  not  to  parts  of  the 
carcasses  of  animals  when  dead,  such  as  a  boar's  head."  ^  In 
this  case,  the  indictment  charged  that  the  defendant  stole 
"  one  ham,  of  the  value  of  ten  shillings,  of  the  goods  and 
chattels  of  one  T.  H."  This  was  held  a  sufficient  description, 
without  stating  the  name  of  the  animal  of  which  the  ham 
had  formed  a  part. 

Substances  mechanically  mLxed  should  not  be  described  in 
an  indictment  as  a  "  certain  mixture  consisting  of,"  etc.,  but 
by  the  names  applicable  to  them  before  such  mixture,  though 
it  is  otherwise  with  regard  to  substances  chemically  mixed.* 
But  in  Rex  v.  Kettle,^  where  the  prisoner  was  indicted  for 
stealing  "  one  bushel  of  oats,  one  bushel  of  chaff,  and  one 
bushel  of  beans,  of  the  goods  and  chattels  of  A.  B.,  then  and 
there  found,"  and  the  proof  was,  that  these  articles  at  the 
time  of  the  taking,  were  mixed  together,  Bayley,  J.,  held,  that 
the  articles  ought  to  have  been  described  as  mixed,  thus,  — 
"  a  certain  mixture  consisting  of  one  bushel,"  etc.,  —  and  he 
directed  an  acquittal  on  this  count. 

In  an  indictment  for  a  larceny  of  bank-notes,  it  is  sufficient 
to  allege  that  the  defendant  stole  "  a  bank-note,  of  the  value 

»  Rex  V.  Rough,  2  East,  P.  C.  607. 

*  Rex  t;.  Puckering,  1  Moody,  C.  C.  242. 

'  Rcgina  v.  Gallears,  3  Cox,  C.  C.  572;  1  Dcnison,  C.  C.  501  ;  2  Carriiig- 
ton  k  Kirwan,  981  ;  1  Temple  &  Mew,  C.  C.  196,  (1849). 

*  Sctnhle,  Aldcrsoii,  I?.,  Regina  v.  Bond,  1  Denison,  C.  C.  521  ;  1  Temple 
&  Mew,  C.  C.  217;  4  Cox,  C.  C.  231  ;  -where  lie  says  that  lie  should  ques- 
tion the  ruling  in  Pcx  ?'.  Kettle,  if  a  similar  ease  came  before  hiai. 

'  3  Cliitty,  Crim.  Law  (Perkiua's  ed.),  947  a. 


CHAP.  XXXI.]  LARCENY.  335 

of ,  of  the  goods  and  chattels  of ,"  without  a  more 

particular  description  of  the  note.^  Money  is  described  as  so 
many  pieces  of  the  current  gold,  silver,  or  copper  coin  of  the 

Commonwealth,  called ,  specifying  the  particular  species 

of  coin.2  An  indictment  for  stealing  "  ten  pounds  in  moneys 
numbered,"  was  decided  to  be  insufficient.  Some  of  the 
pieces  of  which  that  money  consisted  should  be  specified,  be- 
cause pounds  have  no  physical  existence,  being  a  mere  expres- 
sion of  value  used  in  computation.^  "Where  the  property  is 
of  the  nature  to  warrant  that  description,  it  should  be  de- 
scribed as  "  the  goods  and  chattels  of  A."  or,  as  "  of  the  prop- 
erty of  A."  and  money,  as  "  of  the  moneys  of  A. ; "  and  with- 
out these,  or  equivalent  words,  the  indictment  will  be  defective  ; 
at  all  events,  if  these  words  be  unnecessary,  they  may  be 
rejected  as  surplusage,  and  it  is  best  to  insert  them.*  But 
there  is  a  distinction  between  the  modes  of  describing  real 
and  personal  property,  in  reference  to  the  ownership  of  such 
property.  While  the  latter  is  described  as  has  been  stated,  a 
very  general,  if  not  universal,  mode  of  describing  the  owner- 
ship of  real  estate  is,  as  "  the  dwelling-house  of  one  B.  W.,"  ^ 
"  the  city  hall  of  the  city  of  Charlestown,"  etc.^ 

The  description  of  the  property,  at  least  as  to  part  of  it, 
must  be  borne  out  in  evidence.  An  indictment  charging  a 
stealing  of  one  or  more  specific  thing  or  things,  is  not  sup- 
ported, except  by  proof  of  some  one  or  more  of  the  specific 
things   so   charged.      Therefore,   an   indictment  charging  a 


^  Commonwealth  v.  Kicbai-ds,  1  Massacliusetts  (Rand's  ed.),  336.  See 
Salisbuiy  v.  The  State,  6  Connecticut,  101 ;  The  State  v.  Rout,  3  Hawks,  618  ; 
McLaughlin  v.  The  Commonwealth,  4  Rawle,  464. 

*  The  State  v.  Longbottoms,  11  Humphreys,  39. 

'  Rex  V.  Fry,  Russell  &  Ryan,  C.  C.  481.  See  Rex  v.  Warshaner,  1 
Moody,  C.  C.  466. 

*  Regina  ?'.  Radley,  1  Denison,  C.  C.  450;  2  Carrlngton  &  Kirwan,  972; 
1  Temple  &  Mew,  C.  C.  144;  3  Cox,  C.  C.  460.  See  Regina  v.  Powell,  2 
Denison,  C.  C.  403 ;  5  Cox,  C.  C.  396  ;  The  People  v.  Holbrook,  13  John- 
eon,  90. 

*  Commonwealth  v.  Harney,  10  Metcalf,  422. 
'  Commonwealth  v.  Williams,  2  Cushing,  582. 


336  LARCENY.  [chap.  XXXI. 

stealing  of  seventy  pieces  of  the  current  coin  of  the  realm 
called  sovereigns,  of  the  value  of  <£70,  one  hundred  and  forty 
pieces,  etc.,  called  half-sovereigns,  etc.,  five  hundred  pieces, 
etc.,  called  crowns,  etc.,  is  not  supported  by  proof  of  a  steal- 
ing of  a  sum  of  money,  consisting  of  some  or  other  of  the 
coins  mentioned  in  the  indictment,  without  proof  of  some 
one  or  more  of  the  specific  coins  charged  to  have  been  stolen.^ 
So,  an  indictment  charging  an  embezzlement  "  of  one  pound 
eleven  shillings,"  cannot  be  supported,  without  showing  in 
evidence  that  it  was  a  one  pound  note  and  eleven  shillings, 
or  any  part  of  it  in  silver.^  Upon  an  indictment  for  having 
in  possession  a  die  made  of  iron  and  steel,  proof  of  a  die 
made  of  either  material  is  sufficient.^  An  indictment  which 
charges  a  larceny  or  embezzlement  of  the  printed  sheets  of  a 
certain  publication,  is  not  supported  by  evidence  that  those 
sheets  were  delivered  to  the  defendant  to  be  bound,  and  that 
the  defendant,  after  he  had  folded,  stitched,  bound,  and  trim- 
med them,  embezzled  and  fraudulently  converted  them  to  his 
own  use.  In  such  case,  the  indictment  should  charge  a  lar- 
ceny or  embezzlement  of  books.^ 

It  is  necessary  to  state  in  the  indictment  the  value  of  what- 
ever articles  are  alleged  to  have  been  stolen.^  The  reason  for 
requiring  this  allegation  and  finding  of  value  may  have  been, 
originally,  that  a  distinction  might  appear  between  the  offences 
of  grand  and  petit  larceny,  in  reference  to  the  extent  of  pun- 
ishment ;  that  being  graduated,  in  some  measure,  by  the 
value  of  the  article  stolen.  The  punishment  for  larceny  with 
reference  to  the  value  of  the  property  stolen,  is  in  many  cases 
prescribed  by  statute ;  and  for  this  reason,  as  well  as  because 


1  Rcgina  v.  Bond,  1  Denison,  C.  C.  517;  4  Cox,  C.  C.  231 ;  1  Temple  & 
Mew,  C.  C.  242. 

'  Hex  V.  Furneaux,  Russell  &  Ryan,  C.  C.  334.  See  Rex  v.  Carson,  Rus- 
sell 6:  Ryan,  C  C  303. 

'  Rex  V.  Oxford,  Russell  &  Ryan,  C.  C.  382. 

*  Commonwealth  v.  Menifield,  4  IMctcalf,  468. 

'Commonwealth  v.  Smith,  1  Massachusetts  (Rand's  cd.),244;  Hope  v. 
The  Commonwealth,  9  Metcalf,  134, 


CHAP.  XXXI.]  LARCENY.  337 

it  is  in  conformity  with  long  established  practice,  the  value 
of  the  property  alleged  to  have  been  stolen  must  be  set  forth 
in  the  indictment.^  An  indictment  cannot  be  sustained  for 
stealing  a  thing  of  no  intrinsic  or  artificial  value.^  A  count, 
however,  for  stealing  "  one  piece  of  paper,  of  the  value  of  one 
cent,"  would  be  good,  when  a  count  for  stealing  a  bank-note 
fails.^ 

In  general,  it  is  not  necessary  to  prove  the  precise  value  as 
stated,  provided  the  value  proved  is  sufficient  to  constitute 
the  offence.  Thus,  if  on  an  indictment  for  embezzling  one 
pound  notes,  and  other  moneys,  etc.,  describing  them,  though 
the  evidence  be  that  other  property  than  that  described  was 
embezzled,  yet  if  it  be  proved  that  one  pound  notes  were 
embezzled,  it  will  suflice.*  But  where  value  is  essential 
to  constitute  the  offence,  and  the  value  is  ascribed  to  many 
articles  collectively,  the  offence  must  be  made  out  as  to  every 
one  of  those  articles,  and  if  the  jury  find  the  defendant  guilty 
of  stealing  only  a  part  of  them,  he  must  be  acquitted.^  Be- 
cause, where  many  articles  are  described  as  of  a  collective 
value,  the  entire  value  might  be  attached  to  those  articles  as 
to  which  the  jury  acquitted  the  party,  and  thus  the  remainder 
be  really  without  value,  and  not  the  subject  of  larceny. 
Therefore,  where  one  count  in  the  indictment  charged  the 
stealing  of  "  one  set  of  steelyards,  one  block-tin  tea  pot,  and 
one  lot  of  cut  nails,  all  of  the  value  of  three  dollars,"  and  the 
jury  found  the  defendant  guilty  of  stealing  the  steelyards, 
and  not  guilty  of  stealing  the  other  articles  charged,  it  was 


»  Plope  V.  The  Commonwealth,  9  Metcalf,  134,  137. 

^  Although,  to  make  a  thing  the  subject  of  larceny,  it  must  be  of  some 
value ;  Kegina  v.  Murtagh,  1  Crawford  &  Dix,  355  ;  yet  it  need  not  be  of 
the  value  of  some  coin  known  to  the  law,  that  is,  of  a  farthing  at  the  least. 
Regina  v.  Morris,  9  Carrington  &  Payne,  349. 

^  Regina  v.  Perry,  1  Denison,  C.  C.  69;  1  Carrington  &  Kirwan,  725.  In 
Rex  V.  Clark,  Russell  &  Ryan,  C.  C.  181,  it  was  held  to  be  larceny  of  the 
stamps  and  paper ;  the  paper  was  held  to  be  of  some  value,  and  rendered 
more  so  by  the  stamps. 

*  Rex  V.  Carson,  Russell  &  Ryan,  C.  C.  303. 

*  Rex  t'.  Forsyth,  Russell  &  Ryan,  C.  C.  273. 

29 


338  LARCENY.  [chap.  XXXI. 

held   that   no  judgment  could   be  legally  rendered  against 
him.^ 

It  is  an  indispensable  rule  with  respect  to  the  form  of 
indictments  for  larceny,  that  the  name  of  the  person  in  whom 
the  ownership  of  the  goods  was,  at  the  time  of  the  felony, 
should  be  alleged.  Where  goods  are  stolen  out  of  the  posses- 
sion of  a  bailee,  they  may  be  described  in  the  indictment  as 
the  property  of  the  bailor  or  of  the  bailee,^  although  the 
goods  were  never  in  the  real  owner's  possession,  but  in  that 
of  the  bailee  merely;^  as,  goods  left  at  an  inn  ;*  or  intrusted  to 
a  person  for  safe-keeping ;  ^  or  to  a  carrier  to  carry ;  ^  and  linen 
sent  to  a  laundress  to  wash.'^  Goods  pawned  and  the  like 
may  be  laid  to  be  the  goods  and  chattels  of  the  person  to 
whom  they  are  so  intrusted,  etc.,  or  of  the  owner,  at  the  option 
of  the  pleader.^  So  where  the  indictment  alleged  cattle  to 
be  the  property  of  a  person,  who,  it  appeared  in  evidence,  was 
merely  the  agistor,  and  not  the  actual  owner,  it  was  held  to 
be  sufficient.^  Where  A.  had  taken  a  house,  in  which  B.,  his 
relation,  carried  on  a  trade  for  the  benefit  of  A.  and  his  fam- 
ily, having  himself  neither  a  share  in  the  profits  nor  a  salary, 
but  having  authority  to  sell  any  part  of  the  stock,  and  to  buy 
goods  for  the  shop,  accounting  to  A.,  it  was  held,  that  B.  was 


^  Hope  V.  The  Commonwealth,  9  Metcalf,  134.  See  Clifton  v.  The  State, 
5  Blackford,  224. 

'  2  Hale,  P.  C.  181;  The  State  v.  Somerville,  21  Maine,  14;  Yates  v. 
The  State,  10  Yerger,  549. 

'  Rex  i\  Remnant,  Russell  &  Ryan,  C.  C.  136  ;  Rex  v.  Wymer,  4  Car- 
rlngton  &  Payne,  391. 

*  Rex  V.  Todd,  2  East,  P.  C.  658. 

*  Rex  V.  Taylor,  1  Leach,  C.  C.  (4th  London  cd.),  356  ;  Rex  v.  Statham, 
1  Leach,  C.  C.  (4th  London  ed.),  356.  And  see  Regina  v.  Ashley,  1  Car- 
rington  &  Kirwan,  188. 

•^  Rex  V.  Dcakin,  2  East,  P.  C.  653.  Bank-notes  stolen  from  the  mail  may 
be  laid  as  the  i)rnperty  of  the  person  forwarding  them.  The  United  States 
V.  Burroughs,  3  McLean,  405. 

'  Rex  V.  Packer,  2  East,  P.  C.  653  ;  1  Leach,  C.  C.  (4th  London  ed.),  357, 
note. 

»  Archbold,  Crim.  Pi.  (London  ed.  1853),  261. 

»  Rex  V.  Woodward,  2  East,  P.  C.  653. 


CHAP.  XXXI.]  LARCENY.  339 

a  bailee  of  the  goods  of  the  shop,  and  that  they  might  be  laid 
as  his  property.!  And  although  the  goods  have  in  fact  been 
parted  with  by  the  bailee,  but  under  a  mistake,  as  his  special 
property  in  them  is  not  thereby  divested,  if  a  larceny  of  them 
be  then  committed,  they  may  still  be  laid  to  be  the  property 
of  such  bailee.^  Where  a  bailor  steals  his  own  goods  from 
his  bailee,  they  must  be  described  as  the  goods  of  the  bailee.^ 
The  property  must  not,  however,  be  laid  in  one  who  has 
neither  the  actual  nor  the  constructive  possession  of  the 
goods.*  Thus,  if  it  appear  that  the  person  named  as  owner 
is  merely  servant  to  the  real  owner,  the  defendant  must  be 
acquitted ;  for  the  servant  has  not  a  special  property  in  the 
goods,  the  possession  of  the  servant  being  the  possession  of 
the  master.^  Where,  however,  the  money  has  never  been  in 
the  possession  of  the  master,  as  where  it  was  received  by  the 
servant  for  him,  but  he  is  robbed  of  it  before  his  arrival  home, 
it  should  be  laid  as  the  property  of  the  servant,  not  of  the 
master.^  So  where  the  person  named  as  owner  is  a  married 
woman,  the  defendant  must  be  acquitted,  because,  in  law,  the 
goods  are  the  property  of  the  husband,  even  though  she 
be  living  apart  from  him,  upon  an  income  arising  from  prop- 
erty vested  in  trustees  for  her  separate  use ;  because  the  goods 
cannot  be  the  property  of  the  trustees,  nor  can  they  be  the 
property  of  the  wife,  for  in  law  she  can  have  no  property.'^ 
But  where  goods  are  stolen  from  a  feme  sole,  and  before 


^  Regina  v.  Bird,  9  Carrington  &  Payne,  44. 

"  Regina  v.  Vincent,  2  Denison,  C.  C.  464;  5  Cox,  C.  C.  537;  9  Eng. 
Law  and  Eq.  Rep.  548. 

^  Rex  V.  Wilkinson,  Russell  &  Ryan,  C.  C.  470  ;  Rex  v.  Bramley,  Russell 
&Ryan,  C.  C.  478. 

*  Rex  V.  Adams,  Russell  &  Ryan,  C.  C.  225. 

5  Rex  V.  Hutchinson,  Russell  &  Ryan,  C.  C.  412  ;  2  East,  P.  C.  652. 

•  Regina  v.  Rudick,  8  Carrington  &  Payne,  237. 

'  Rex  V.  French,  Russell  &  Ryan,  C.  C.  491  ;  Rex  v.  Roberts,  7  Carring- 
ton &  Payne,  485;  Regina  v.  Sallows,  2  Cox,  C.  C.  63;  1  Hale,  P.  C.  513  ; 
Archbold,  Crim.  PI.  (London  ed.  1853),  262.  And  see  Rex  v.  Wilford, Rus- 
sell &  Ryan,  C.  C.  517. 


340  LARCENY.  [chap.  XXXI. 

indictment  she  married,  it  was  held,  that  describing  her  as  the 
owner  of  the  goods  by. her  maiden  name  was  sufficient.^ 

Goods  let  with  a  ready  furnished  lodging  must  be  described 
as  the  goods  of  the  lodger,  and  not  as  the  goods  of  the  orig- 
inal owner;  for  the  owner  neither  has  nor  is  entitled  to  the 
possession,  and  cannot  maintain  trespass.^  Goods  seized 
under  a  wTit  oifi.fa.  may  be  described  as  the  property  of  the 
party  against  whom  the  writ  issued ;  for  though  they  are  in 
custodid  legis,  the  original  owner  continues  to  have  a  prop- 
erty in  them  until  they  are  sold.^  So  if  A.  steal  the  goods  of 
B.,  and  C.  steal  the  same  goods  from  A.,  the  goods  may  be 
described  as  the  goods  of  either;  of  A.,  because  he  had  the 
possession,  and  of  B.,  because  the  property  of  the  true  owner 
is  not  divested  by  the  tortious  taking.^  Clothes  or  other  nec- 
essaries furnished  by  a  father  to  his  child  may,  it  seems,  be 
laid  to  be  the  property  either  of  the  father  or  of  the  child,  par- 
ticularly if  the  child  be  of  tender  age  ;  ^  but  it  is  safer  perhaps 
to  allege  them  to  be  the  property  of  the  child.^  A  shroud 
stolen  from  a  corpse  must  be  laid  to  be  the  property  of  the 
executors,  or  of  the  person  who  buried  the  deceased,  and  not 
of  the  deceased  himself.'^  The  coffins  in  which  the  dead  have 
been  interred  are  also  to  be  laid  as  the  goods  of  the  executors.^ 

Where  goods  are  the  property  of  several,  they  must  be 
so  described  in  the  indictment.     But  it  is  not  necessary  that 

^  Rex  V.  Turner,  1  Leach,  C.  C.  (4th  London  ed.)  536. 

*  Rex  V.  Belstead,  Russell  &  Ryan,  C.  C.  441;  Rex  v.  Brunswick,  1 
Moody,  C.  C.  26. 

^  Rex  V.  Eastall,  2  Russell,  Crim.  Law,  158. 

*  Rex  I'.  Wilkins,  1  Leach,  C.  C.  (4th  London  cd.),  522,  623 ;  Ward  v. 
The  People,  3  Hill,  (N.  Y.),  396. 

<*  Rex  V.  Hayne,  12  Coke,  Rep.  113 ;  2  East,  P.  C.  654  ;  Archbold,  Crim. 
Pi.  (London  cd.  1853),  262. 

»  Archbold,  Crim.  PI.  (London  cd.  1853),  262.  See  Rex  v.  Forsgate,  1 
Leach,  C.  C.  (Ith  London  ed.),  463,  464,  note  ;  Regina  v.  Ilnghcs,  Carring- 
ton  &  Marshman,  593. 

'  Rex  V.  Ilayne,  12  Coke,  Rep.  113,  b.;  1  Halo,  P.  C.  515;  1  Gabbett, 
Crim.  Law,  601.     See  Wonson  v.  Sayward,  IS  Pickering,  402. 

»  1  Last,  P.  C.  652;  1  Gubbctt,  Crim.  Law,  601. 


CHAP.  XXXI.]  LARCENY.  341 

the  person  in  whom  the  ownership  is  laid,  should  have  the 
strict  legal  property,  as  where  the  possession  and  legal  right 
is  in  one,  and  an  equitable  ownership  in  another.^ 


1.  For  simple  larceny  at  common  law. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of 
B.,  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.,  afore- 
said, in  the  county  aforesaid,  one  silver  tankard,  of  the  value 
of  fifty  dollars,  of  the  goods  and  chattels  of  one  A.  B., 
then  and  there  in  the  possession  of  the  said  A.  B.^  being 
found,  feloniously  did  steal,  take,  and  carry  away ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

2.  For  larceny  by  the  cashier  of  a  bank.     Mass.  St.  1S46,  ch. 

171,  §  1. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

D.,  in  the  county  of  N.,  the  said  A.  B.,  then  and  there  being 
an  officer,  to  wit,  the  cashier  of  the  Dedham  Bank,  a  corpora- 
tion then  and  there  duly  and  legally  established,  organized, 
and  existing  under  and  by  virtue  of  the  laws  of  this  Com- 
monwealth, as  an  incorporated  bank,  did  feloniously  and 
fraudulently  convert  to  the  said  A.  B.'s  own  use,  certain 
money,  to  a  certain  large  amount,  to  wit,  to  the  amount  and 
sum  of  one  hundred  thousand  dollars,  and  of  the  value  of  one 
hundred  thousand  dollars,  of  the  property  and  moneys  of  the 
said  President,  Directors,  and  Company  of  the  Dedham  Bank, 
being  in  their  banking-house,  there  situate ;  whereby  and  by 

^Rex  V.  Scott,  1  East,  P.  C.  655;  Russell  &  Ryan,  C.  C.  13;  Rex  v. 
Gaby,  Russell  &  Ryan,  C.  C.  178;  1  Gabbett,  Crim.  Law,  601. 

*  Where  the  property  stolen  is  alleged  to  be  that  of  Richard  G.,  and  it  is 
afterwards  alleged  to  be  the  property  of  Robert  G.,  it  Is  a  mere  clerical  error. 
Greeson  v.  The  State,  5  Howard,  (Mississippi,)  33. 

29* 


342  LARCENY.  [chap.  XXXL 

force  of  the  statute  in  such  case  made  and  provided,  the  said 
A.  B.  is  deemed  to  have  committed  the  crime  of  larceny 
in  said  bank.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say  that  the  said  A.  B.,  then  and  there,  in  man- 
ner and  form  aforesaid,  the  aforesaid  money,  of  the  property 
and  moneys  of  the  said  President,  Directors,  and  Company 
of  the  Dedham  Bank,  feloniously  did  steal,  take,  and  carry 
away,  in  the  banking-house  aforesaid ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


3.  For  breaking  and  entering  a  railroad  depot,  in  the  night 

time,  ivith  intent  to  commit  larceny.     Mass.  St.  1851,  ch. 
156,  §  1.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord  , 

with  force  and  arms,  at  A.  in  the  county  of  M.,  a  certain 
building,  to  wit,  the  depot  building  of  the  Boston  and  Wor- 
cester Railroad  Corporation  there  situate,  in  the  night  time 
of  said  day,  feloniously  did  break  and  enter,  with  intent  then 
and  there  in  the  night  time,  to  commit  the  crime  of  larceny 
in  the  depot  building  aforesaid;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

4.  For  breaking  and  entering  a  stable  in  the  night  time,  and 

committing  a  larceny  therein.  —  Mass.  St.  1851,  eh.  156, 
§1. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  a  certain  building,  to  wit,  the  stable  of  one  E.  F. 


*  In  Commonwealth  i'.  White,  C  Gushing,  181,  it  was  held,  that  the  passen- 
ger room  of  a  railroad  station,  where  the  books  are  kept  and  tickets  sold,  is 
not  an  ofllce  within  the  Ki;v.  Sta.  ch.  12C. 


CHAP.  XXSI.]  LARCENY.  343 

there  situate,  in  the  night  time  of  said  day,  feloniously  did 
break  and  enter,  and  one  chaise,  of  the  value  of  one  hundred 
dollars,  one  saddle,  of  the  value  of  ten  dollars,  and  one  bridle, 
of  the  value  of  five  dollars,  of  the  goods  and  chattels  of  the 
said  E.  F.,  then  and  there  in  the  stable  aforesaid  being  found, 
then  and  there  in  the  night  time  feloniously  did  steal,  take, 
and  carry  away,  in  the  stable  aforesaid ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  • 
statute  in  such  case  made  and  provided. 

5.  For  breaking  and  entering  a  shop  in  the  night  time,  adjoin- 
ing to  a  dwelling-house,  with  intent  to  commit  the  crime 
of  larceny,  and  actually  stealing  therein.  —  Mass.  St. 
1839,  ch.  31.1 

The  jurors,  etc.,  upon  their  oath  present,  that  Joseph  H. 
Josslyn,  late  of,  etc.,  on  the  first  day  of  February  in  the  year  of 

our  Lord ,  with  force  and  arms,  at  Waltham,  in  the  county 

of  Middlesex,  the  shop  of  one  Charles  W.  Fogg,  there  situate, 
adjoining  to  a  certain  dwelling-house,^  in  the  night  time  did 
break  and  enter,  with  intent  the  goods  and  chattels  of  said 
Fogg,  then  and  there  in  said  shop  being  found,  feloniously  to 
steal,  take,  and  carry  away;^    and  one  English  gold  lever 

^  A  count  in  an  indictment,  ■which  charges  the  breaking  and  entering,  in 
the  night  time,  of  a  shop  adjoining  to  a  dwelling-house,  with  intent  to  commit 
a  larceny,  may  be  joined  with  a  count  which  charges  the  stealing  of  goods  in 
the  same  shop ;  and  the  defendant,  if  found  guilty,  may  be  sentenced  for 
both  offences.  But  if  the  breaking  and  entering,  and  the  actual  stealing, 
are  charged  in  one  count,  only  one  offence  is  charged,  and  the  defendant,  on 
conviction,  can  be  sentenced  to  one  penalty  only.  Josslyn  v.  The  Common- 
wealth, 6  Metcalf,  23G  ;  Commonwealth  v.  Hope,  22  Pickering,  1 ;  Common- 
wealth V.  Tuck,  20  Pickering,  356. 

*  It  is  not  necessary  to  aver  that  the  shop  was  or  was  not  "  adjoining  to  a 
dwelling-house."  Larned  v.  The  Commonwealth,  12  Metcalf,  240;  Devoe  v. 
The  Commonwealth,  3  Metcalf,  316.  See  Commonwealth  v.  Tuck,  20  Pick- 
ering, 356  ;  Rex  v.  Marshall,  1  Moody,  C.  C.  158. 

'  This  is  a  sufficient  averment.  The  words  of  the  St.  1839,  ch.  31,  are 
"  with  intent  to  commit  the  crime  of  larceny."  But  it  is  not  necessary  to 
aver  the  intent  in  the  words  of  the  statute.  Josslyn  v.  The  Commonwealth, 
6  Metcalf,  236. 


344  LARCENY.  [chap.  XXXI. 

watch,  of  the  value  of  one  hundred  dollars,  and  one  gold 
Lepine  watch,  of  the  value  of  one  hundred  dollars,  nine  old 
silver  watches,  each  of  the  value  of  ten  dollars,^  of  the  goods 
and  chattels  of  the  said  Charles  "W.  Fogg,  then  and  there  in 
the  shop  of  said  Fogg  being  found,  then  and  there  in  the 
night  time,  feloniously  did  steal,  take,  and  carry  away,  in  the 
shop  aforesaid;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

6.  For  breaking'  and  entering  a  shop  in  the  night  time,  and 

committing  a  larceny  therein.  —  Mass.  Rev.  Sts.  ch.  126, 
§11. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  the  shop  of  one  A.  B.  there  situate,  in  the  night 
time  of  the  same  day  feloniously  did  break  and  enter,  and, 
here  insert  all  the  articles  stolen,  alleging  the  kind,  number,  and 
value  of  each,  of  the  goods  and  chattels  of  the  said  A.  B.,  then 
and  there  in  the  shop  aforesaid  being  found,  then  and  there 
in  the  night  time  feloniously  did  steal,  take,  and  carry  away, 
in  the  shop  aforesaid ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

7.  For  breaking  and  entering  a  vessel  in  the  night  time,  and 

committing  a  larceny  therein.  —  Mass.  Rev.  Sts.  ch.  126, 
§11. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

*  "\Vh(^re  an  indictment  for  breaking  and  entering  a  building,  with  intent 
to  steal  therein,  is  correctly  framed,  an  additional  charge,  that  the  defendant 
committed  a  larceny  therein,  though  defective,"  and  such  as  would  not  of 
itself  be  a  suflicicnt  indictment  for  larceny,  is  no  cause  for  reversing  a  judg- 
ment rendered  on  a  g(!neral  verdict  of  guilty.  Larncd  v.  The  Common- 
wealth, 12  Metcalf,  21U, 


CHAP.  XXXI.]  LARCENY.  345 

etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  with  force  and  arms,  at   B.  aforesaid,  in  the  county 

aforesaid,  a  certain  vessel  of  the  property  of  one  A.  B.,  called 

the ,  within  the  body  of  the  said  county  of  S.  then  and 

there  lying  and  being,  in  the  night  time  of  said  day,  feloni- 
ously did  break  and  enter,  and  one  trunk,  of  the  value  of  five 
dollars,  etc.,  in  the  vessel  aforesaid  then  and  there  being 
found,  then  and  there  in  the  night  time  feloniously  did  steal, 
take,  and  carry  away,  in  the  vessel  aforesaid ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


8.  For  entering  a  divellmg-house  in  the  night  time,  ivithout 

breakings  some  persons  being  therein^  and  being  put  in 
fear.  —  Mass.  Rev.  Sts.  ch.  126,  §  12. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  D.  in  the  county  of  N.,  the  dwelling- 
house  of  one  A.  B.  there  situate,  in  the  night  time  of  said 
day  feloniously  did  enter,  without  breaking  the  same,  with 
intent  then  and  therein  to  commit  the  crime  of  larceny ;  one 
A.  B.,  and  M.  his  wife,  then,  to  wit,  at  the  time  of  the  com- 
mitting of  the  felony  aforesaid,  lawfully  being  in  the  said 
dwelling-house,  and  by  the  said  C.  D.  were  then  and  there 
put  in  fear ;  against  the  peace  of  the  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

9.  For  breaking  and  entering  a  dwelling-house  in  the  daytime^ 

the  owner  being  therein,  and  being  put  in  fear,  —  Mass. 
Kev.  Sts.  ch.  126,  §  12. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  D.  in  the  county  of  N.,  the  dwelling- 
house  of  one  A.  B.  there  situate,  in  the  daytime  feloniously 


346  .  LARCENY.  [chap.  XXXI. 

did  break  and  enter,  with  intent  then  and  therein  to  commit 
the  crime  of  larceny  ;  the  said  A.  B.,  and  M.  his  wife,  then, 
to  wit,  at  the  time  of  the  committing  of  the  felony  aforesaid, 
lawfully  being  in  said  dwelling-house,  and  by  the  said  C.  D. 
were  then  and  there  put  in  fear ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

10.  Larceny  in  a  dwelling-house  in  the  daytime.  —  Mass.  Rev. 

Sts.  ch.  126,  §  14.1 

The  jurors,  etc.,  upon  their  oath  present,  that  Pardon 
"Williams,  late  of  Boston,  in  the  county  of  Suffolk,  tailor,  on 

the  first  day  of  June  in  the  year  of  our  Lord ,  at  Boston, 

in  the  county  aforesaid,  one  certain  original  book  of  accounts 
concerning  money  due,  of  the  value  of  twenty  dollars,  etc.,  of 
the  goods  and  chattels  of  one  Alida  M.  Rholl,  in  the  dwell- 
ing-house of  one  Susan  H.  Danforth,  there  situate,^  in  the 
said  Alida's  possession  then  and  there  being,  did  then  and 
there,  in  said  dwelling-house,  in  the  daytime,  feloniously  steal, 
take,  and  carry  away  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

11.  Larceny  in  a  dwelling-house  in  the  night  time.  —  Mass.  St. 

1843,  ch.  1,  §  1.3 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  at  B.  in  the  county  of  S.,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  one  silver  cup,  of  the  value  of  five  dol- 


>  Commonwealth  v.  Williams,  9  Metcalf,  273. 

*  Where  the  imhctincnt  alleged  that  the  defendant,  at,  etc.,  stole  certain 
goods  in  the  dwelling-liouse  of  W.  T.  "  then  and  there  being,"  omitting  the 
words  "  there  situate,"  it  was  held  that  the  house  must  be  considered  as  de- 
scribed of  the  place  laid  as  special  venue.  Kex  v.  Naj)pcr,  1  Moody,  C. 
C.  44. 

*  Sec  Hopkins  v.  The  Commonwealth,  3  Metcalf,  4G0,  466. 


CHAP.  XXXI.]  LARCENY.  347 

lars,  twelve  silver  spoons,  each  of  the  value  of  one  dollar,  and 
one  silver  pitcher,  of  the  value  of  fifty  dollars,  of  the  goods 
and  chattels  of  one  A.  B.,  in  the  dwelling-house  of  the  said 
A.  B.  there  situate,  then  and  there  being,  did  then  and  there, 
in  said  dwelling-house,  in  the  night  time  of  said  day,  feloni- 
ously steal,  take,  and  carry  away ;  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 


12.  Breaking  and  entering  a  city  hall,  and  stealing  therein  in 
the  night  time.  —  Mass.  Rev.  Sts.  ch.  126,  §  14.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  John  Wil- 
liams, late  of,  etc.,  on  the  twelfth  day  of  November  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  Charlestown, 

in  the  county  of  Middlesex  aforesaid,  the  city  hall  of  the  city 
of  Charlestown,  in  said  county,  there  situate,  and  erected  for 
public  uses,  to  wit,  the  transaction  of  the  municipal  business 
of  said  city  of  Charlestown,  in  the  night  time  of  the  said  day, 
feloniously  did  break  and  enter,  and  ten  pieces  of  gold  coin, 
current  within  this  Commonwealth  by  the  laws  and  usages 
thereof,  called  eagles,  of  the  value  of  ten  dollars  each,  ten 
other  pieces  of  gold  coin,  current  within  this  Commonwealth 
by  the  laws  and  usages  thereof,  called  sovereigns,  of  the  value 
of  five  dollars  each,  of  the  goods  and  chattels  and  moneys  of 
the  said  city  of  Charlestown,  then  and  there  in  the  city  hall 
aforesaid,  being  found,  then  and  there  in  the  night  time, 
feloniously  did  steal,  take,  and  carry  away,  in  the  city  hall 
aforesaid ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


^  In  an  indictment  under  this  section  of  the  statute,  for  breaking  and  enter- 
ing in  any  of  the  buildings  therein  mentioned,  the  amount  or  value  of  the 
property  stolen  is  immaterial.  And  it  is  a  sufficient  allegation  as  to  the  steal- 
ing, if  there  is  a  larceny  properly  and  technically  charged  of  any  of  the 
goods  alleged  in  the  indictment  to  be  stolen.  Commonwealth  v.  Williams,  2 
Cashing,  582. 


348  LARCENY.  [chap.  XXXI. 


13.  For  breaking  and  entering  a  meeting-house  in  the  night 

time.,  and  committing  a  larceny  therein.  —  Mass.  Rev.  Sts. 
ch.  126,  §  14. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord  ,  with   force   and   arms,  at  B.   aforesaid,  in  the 

county  aforesaid,  the  meeting-house  of  the  First  Parish  in 
said  B.,  there  situate,  and  erected  for  public  uses,  to  wit,  for 
the  public  worship  of  God,  in  the  night  time  of  the  same  day 
feloniously  did  break  and  enter,  and  two  silver  cups,  each  of 
the  value  of  fifty  dollars,  of  the  goods  and  chattels  of  the 
First  Parish  in  the  said  town  of  B.,  then  and  there  in  the 
meeting-house  aforesaid  being  found,  then  and  there  in  the 
night  time  feloniously  did  steal,  take,  and  carry  away,  in  the 
meeting-house  aforesaid  ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  cfase 
made  and  provided. 

14.  For  stealing  in  a  building  that  is  on  fire.  —  Mass.  Rev. 

Sts.  ch.  126,  §  15. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  S.  in  the  county  of  E.,  with  force  and  arms,  one  gold 
watch,  of  the  value  of  one  hundred  dollars,  one  gold  ring,  of 
the  value  of  ten  dollars,  and  one  gold  bracelet,  of  the  value  of 
twenty  dollars,  of  the  goods  and  chattels  of  one  E.  F,,  in  a 
certain  building,  to  wit,  the  dwelling-house  of  the  said  E.  F., 
there  situate,  then  and  there  being,  which  said  dwelling-house 
was  then  and  there  on  fire,  then  and  there  feloniously  did 
steal,  take,  and  carry  away,  in  the  dwelling-house  aforesaid; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


CHAP.  XXXI.]  LARCENY.  349 


15.  For  stealing  inoperiy  removed  in  consequence  of  alarm 
caused  by  fire. —  Rev.  Sts.  of  Mass.  ch.  126,  §  15. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord  ■ , 

at  S.  in  the  county  of  E.,  with  force  and  arms,  one  sofa,  of 
the  value  of  fifty  dollars,  of  the  goods  and  chattels  of  one  E. 
F.,  the  said  sofa  being  then  and  there  removed  from  the 
dwelling-house  of  the  said  E.  F.,  in  consequence  of  an  alarm 
caused  by  fire,  feloniously  did  steal,  take,  and  carry  away ; 
against  the  peace  of  the  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

16.  For  a  larceny  from  the  persofi.  —  Rev.  Sts.  of  Mass. 
ch.  126,  §  16.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  L.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  with  force  and  arms,  at  L.  in  the 

county  of  M.,  one  gold  watch,  of  -the  value  of  one  hundred 
dollars,  of  the  goods  and  chattels  of  one  E.  F.,  then  and  there 
from  the  person  of  the  said  E.  F.  feloniously  did  steal,  take, 
and  carry  away ;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

17.  For  a  larceny  of  real  property.  —  Mass.  St.  1851,  ch.  151. 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of 
C.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  C.  in  the 

county  of  M.,  fifty  pounds  weight  of  lead,  each  of  the  value  of 
ten  cents,  of  the  property  of  one  A.  B.,  and  against  the  will  of 

1  See  Commonwealth  v.  Dimond,  3  Gushing,  235  ;  CommonweaUh  i'.  East- 
man, Mass.  Sup.  Jud.  Ct.  Middlesex,  Oct.  T.  1854.  This  case  will  be  re- 
ported in  the  second  volume  of  Gray's  Reports. 

30 


350  LARCENY.  [chap.  XXXI. 

the  said  A.  B.,  then  and  there  being  parcel  of  the  realty,  to 
wit,  of  the  dwelling-house  of  the  said  A.  B.  there  situate,  wil- 
fully and  maliciously  did  rip,  cut,  and  break,  and  then  and 
there  did  take  and  carry  away  the  same,  with  intent  then  and 
there  the  same  feloniously  to  steal,  take,  and  carry  away ; 
whereby  and  by  force  of  the  statute  in  such  case  made  and 
provided,  the  said  C.  D.  is  guilty  of  the  crime  of  simple  lar- 
ceny. And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  C.  D.  then  and  there,  in  manner 
and  form  aforesaid,  the  lead  aforesaid,  of  the  property  of  the 
said  A.  B.  feloniously  did  steal,  take,  and  carry  away  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 


CHAPTER    XXXII. 

LEWDNESS   AND   LASCIVIOUS   COHABITATION. 

1.  Indictment,  at  common  law,  for  exposing  the  per  son?- 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  devising  and  intending  the 
morals  of  the  citizens  of  said  Commonwealth  to  debauch  and 
corrupt,^  on  the  first  day  of  June  in  the  year  of  our  Lord 

,  at  B.  aforesaid,  in  the  county  aforesaid,  on  a  certain 

common  and  public  highway  there  situate,  in  the  presence  of 
divers  citizens  of  said  Commonwealth  then  and  there  being, 
and  within  sight  and  view  of  divers  other  citizens  through 
and  on  the  said  highway  then  and  there  passing  and  repass- 
ing, unlawfully,  publicly,  wilfully,  wantonly,  scandalously, 
and  indecently  did  expose  to  the  view  of  the  said  persons 
so  present,  and  so  passing  and  repassing  as  aforesaid,  the 
body  and  person  of  the  said  C.  D.  naked  and  uncovered,  for 
a  long  space  of  time,  to  wit,  for  the  space  of  one  hour ;  to  the 
common  nuisance,  etc.,^  and  against  the  peace  of  said  Com- 
monwealth. 


*  An  indecent  exposure,  though  in  a  place  of  public  resort,  if  visible  by 
one  person  only,  is  not  indictable  as  a  common  nuisance.  Regina  v.  Webb, 
1  Denison,  C.  C.  338;  3  Cox,  C.  C.  183;  2  Carrington  and  Kirwan,  933; 
1  Temple  &  Mew,  C.  C.  23 ;  Regina  v.  Watson,  3  Cox,  C.  C.  376  ;  20  Eng. 
Law  and  Eq.  Rep.  599,  note.  And  see  The  State  v.  Roper,  1  Devereaux  & 
Battle,  208. 

"  This  allegation  sufficiently  charges  a  criminal  intent.  Commonwealth  v. 
Haynes,  Mass.  Sup.  Jud.  Ct.  Middlesex,  October  Term,  1854.  This  case 
will  be  reported  in  the  second  volume  of  Gray's  Reports. 

*  In  Massachusetts,  it  has  been  held,  that  it  is  not  necessary  that  the  indict- 
ment should  conclude  ad  commune  nocumentum.     Commonwealth  r.  Haynes, 


352  LEWDNESS,   ETC.  [CHAP.  XXXII. 

2.  For  leivd  and  lascivious  cohabitation.  —  Rev.  Sts.  of  Mass. 

ch.  130,  §  4.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  aforesaid,  in  the  county  aforesaid,  and  from  that  day 
continually,  to  the  first  day  of  June  in  the  year  of  our  Lord 

,  at  B.  aforesaid,  in  the  county  aforesaid,  did  lewdly  and 

lasciviously  associate  and  cohabit  with  one  J.  N. ;  the  said  C. 
D.  being  then  and  there  an  unmarried  man,  and  the  said  J.  N. 
being  then  and  there  an  unmarried  woman,  and  the  said  C. 
D.  and  the  said  J.  N.  not  being  then  and  there  married  to 
each  other ;  against  the  peace,  etc.,  and  contrary,  etc. 

3.  For  open  and  gross  leivdness  and  lascivious  behavior.  — 

Rev.  Sts.  of  Mass.  ch.  130,  §  4.2 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 


Mass.  Sup.  Jud.  Ct.  Middlesex,  October  Term,  1854.  But  see  Regina  v. 
Webb,  uhi  supra  ;  Regina  v.  Watson,  uhi  supi-a ;  Regina  v.  Holmes,  Dearsley, 
C.  C.  207;  6  Cox,  C.  C.  216;  3  Carrington  &  Kirwan,  360;  20  Eng.  Law 
and  Eq.  Rep.  597. 

^  By  cohabiting  must  be  understood  a  dwelling  or  living  together,  and  not 
a  transient  and  single  unlawful  interview.  Commonwealth  v.  Calef,  10  Mas- 
sachusetts, (Rand's  ed.),  152.     Sec  Hinson  v.  The  State,  7  Missouri,  244. 

'Sec  Commonwealth  v.  Catlin,  1  Massachusetts,  (Rand's  ed.),  7;  The 
State  V.  Moore,  7  Swan,  130  ;  The  State  v.  Millard,  18  Vermont,  575 ;  The 
State  V.  Grisham,  2  Yergcr,  589.  In  Commonwealth  v.  Hunt,  4  Cushing, 
49,  the  husband  had  obtained  a  divorce  from  the  bond  of  matrimony,  for 
the  caus(;  of  utter  and  wilful  desertion  by  the  wife  for  the  term  of  five  years 
consecutively,  without  his  consent.  The  wife  afterwards  went  into  another 
State,  and  was  there  married  to  another  man,  with  whom  she  returned  to 
Massachusetts,  and  there  lived  and  cohabited.  She  was  indicted  for  lewd 
and  lascivious  cohabitation,  but  it  was  held,  that  if  she  was  guilty  of  any 
oflence  under  the  Rev.  Sts.  ch.  130,  she  was  indictable  under  the  second  sec- 
tion, which  punislics  the  crime  of  polygamy,  and  not  under  the  fourth  section, 
for  lewd  and  lascivious  behavior. 


CHAP.  XXXII.]  LEWDNESS,   ETC.  353 

aforesaid,  was  guilty  of  the  crime  of  open  and  gross  lewdness 
and  lascivious  behavior,  by  then  and  there,  here  set  forth 
the  acts^  the  said  C.  D.  being  then  and  there  a  married 
man,  and  then  and  there  having  a  lawful  wife  alive  other 
than  the  said  J.  N. ;  against  the  peace,  etc.,  and  contrary  to 
the  form,  etc. 


*  See  Dameron  v.  The  State,  8  Mssouri,  494. 
30* 


CHAPTER    XXXIII. 

LIBEL. 

The  several  species  of  this  offence  which  are  indictable  at 
common  law,  are  indictable  in  the  United  States,  either  at 
common  law,  or  by  virtue  of  particular  statutes ;  the  common 
law  being  adopted  in  all  the  States,  except  so  far  as  it  may 
have  been  altered  by  statutes  or  constitutional  provisions.^ 

The  most  important  part  of  the  indictment  is,  the  setting 
forth  of  the  matter  charged  as  libellous.  It  must  not  only 
contain,  but  it  must  also  profess  to  set  out,  the  words  of 
which  the  alleged  libel  is  composed,  that  is  to  say,  a  transcript 
of  the  libellous  publication,  or  of  that  part  of  it,  which  is  the 
subject  of  the  indictment.  The  word  "tenor,"  imports  an 
exact  copy,  and,  that  it  is  set  out  in  words  and  figures.^  If 
parts  of  the  publication  are  selected,  they  must  be  set  forth 

thus :  "  In  a  certain  part  of  which  said ,  there  were  and 

are  contained  certain  false,  wicked,  malicious,  scandalous, 
and  libellous  matters  of  and  concerning  the  said  C.  D.,  ac- 
cording to  the  tenor  following,  that  is  to  say,  "  And  in  a  cer- 
tain  otlier   part,"   etc.,   etc.^     When   the   publication   is   so 

*  Commonwealth  v.  Chapman,  13  Metcalf,  68  ;  Commonwealth  v.  Knee- 
land,  20  Pickering,  20G,  232;  Commonwealth  v.  Holmes,  17  Massachusetts, 
(Hand's  ed.),  335  ;  Commonwealth  v.  Blanding,  3  Pickering,  304  ;  Common- 
wealth V.  Clap,  4  Massachusetts,  (Rand's  ed.),  163 ;  The  State  v.  Henderson, 
1  Richardson,  179  ;  The  State  v.  Farley,  4  McCord,  317  ;  The  State  v.  White, 
G  Iredell,  418;  7  Iredell,  180;  The  State  v.  Burnham,  9  New  Hampshire, 
34  ;  8  Greenleaf,  on  Ev.  §  164,  165. 

*  Commonwealth  v.  Wright,  1  Gushing,  46  ;  Wright  v.  Clements,  3  Barnc- 
■wall  &  Aldcrson,  503.  The  attaching  of  one  of  the  original  printed  papers 
to  the  indictment,  in  place  of  inserting  a  copy,  is  not  a  sufficient  indication, 
that  the  yiapcr  is  set  out  in  the  very  words.  Commonwealth  v.  Tarbox,  1 
Cushing,  66. 

'  Sec  Tabart  v.  Tipper,  1  Campbell,  350,  353. 


CHAP.  XXXIII.]  LIBEL.  355 

obscene,  as  to  render  it  improper  that  it  should  appear  on  the 
record,  then  the  statement  of  the  contents  may  be  omitted 
altogether,  and  a  description  thereof  substituted ;  but,  in  this 
case,  a  reason  for  the  omission  must  be  stated  in  the  indict- 
ment, by  proper  averments.^  Wliere  the  pubUcation  on  which 
the  indictment  rests  is  in  the  defendant's  possession,  or  can- 
not be  produced,  and  there  is  no  laches  on  the  part  of  the 
government,  it  is  necessary  to  aver  in  the  indictment  such 
facts  as  are  sufficient  to  excuse  the  non-description  of  the 
instrument,  and  then  to  proceed,  either  by  stating  its  sub- 
stance, or  by  describing  it  as  an  instrument  which  cannot  be 
set  forth  by  reason  of  its  loss,  destruction,  or  detention,  as 
the  case  may  be.^  If  the  libel  be  in  a  foreign  language,  it 
must  be  set  out  in  such  language,  verbatim,  together  with  a 
correct  translation.^ 

Besides  setting  out  the  libellous  passages  of  the  publica- 
tion, the  indictment  must  also  contain  such  averments  and 
innuendoes  as  may  be  necessary  to  render  it  intelligible,  and 
its  application  to  the  party  libelled,  evident.  When  the 
statement  of  an  extrinsic  fact  is  necessary  in  order  to  render 
the  libel  intelligible,  or  to  show  its  libellous  quality,  such 
extrinsic  fact  must  be  averred  in  the  introductory  part  of  the 
indictment;  but  where  it  is  necessary  merely  to  explain  a 
word  by  reference  to  something  which  has  preceded  it,  this  is 
done  by  an  innuendo.  And  an  innuendo  can  explain  only  in 
cases  where  something  has  already  appeared  upon  the  record 
to  found  the  explanation ;  it  cannot,  of  itself,  change,  add  to, 
or  enlarge  the  sense  of  expressions  beyond  their  usual  accepta- 
tion and  meaning.* 

The  indictment  must  charge  a  publication,  for  it  is  not 

'  Commonwealth  v.  Holmes,  17  Massachusetts,  (Rand's  ed.),  335 ;  Com- 
monwealth V.  Tarbox,  1  Cashing,  66. 

"  Ante,  p.  213,  2U.  And  see  The  United  States  v.  Britton,  2  Mason, 
464. 

^  Zenobio  17.  Axtel,  o  Term  Reports,  162;  Archbold,  Crim.  PI.  (London 
ed.),  607,  608. 

*  Commonwealth  v.  Snelling,  15  Pickering,  321,  335  ;  The  State  v.  Hender- 
son, 1  Richardson,  179;  Archbold,  Crim.  PI.  (London  ed.  1853),  608. 


356  LIBEL.  [chap,  xxxin. 

perfectly  clear  that  it  is  a  criminal  offence  to  compose  and  write 
libellous  matter  if  it  be  not  published ;  ^  and  it  is  well  settled 
that  the  charge  will  be  supported  by  proof  of  the  publication 
alone.2  "phe  indictment  must  expressly  aver,  that  the  libel 
was  "  of  and  concerning "  the  party  libelled,  unless  this 
is  clearly  and  distinctly  shown  by  the  inevitable  construction 
of  the  libel  itself ;  and  the  omission  of  those  words  is  not 
supplied  by  innuendoes  pointing  out  the  different  parts  of  the 
libel  to  mean  the  party  libelled.^  The  question  whether  a  bill 
of  particulars  should  be  required,  is,  in  this  case,  as  in  all  others, 
exclusively  within  the  discretion  of  the  presiding  judge.* 


1.  Indictment  for  libels  and  a  plea  of  justification  under  Lord 
CampheWs  act? 

The  jurors,  etc.,  upon  their  oath  present,  that  before  and  at 
the  time  of  publishing  the  false,  scandalous,  malicious,  and 
defamatory  libel  hereinafter  mentioned,  Henry  Phillpotts  had 
become  and  was  and  still  is,  Lord  Bishop  of  Exeter,  to 
wit,  bishop  of  the  diocese  of  Exeter,  in  that  part  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  called  Eng- 
land, and  that  before  the  time  of  the  publishing  of  the 
said  false,  scandalous,  malicious,  and  defamatory  libel  here- 

^  See  Rex  v.  Burdett,  1  Barnewall  &  Alderson,  95.  Although  if  a  party 
•write  a  libel  in  the  county  of  A.  with  intent  to  publish  it,  and  afterwards 
publish  it  in  the  county  of  B.,  he  may  be  indicted  for  the  misdemeanor  in 
either  county.     Rex  v.  Burdett,  uhl  supra. 

'  Rex  V.  Hunt,  2  Campbell,  583 ;  Rex  v.  Williams,  2  Campbell,  646 ;  3 
Greenleaf  on  Ev.  §  169.     See  The  State  v.  Barnes,  32  Maine,  530. 

*  Rex  V.  Marsden,  4  Maule  &  Selwyn,  164.  See  Gregory  v.  Regina,  5 
Cox,  C.  C.  247;  2  Deacon,  Crim.  Law,  810;  The  State  i'.  Henderson,  1 
Richardson,  174  ;  Taylor  v.  The  State,  4  Georgia,  14. 

*  Couunon wealth  v.  Snelling,  15  Pickering,  321  ;  Commonwealth  v.  Giles, 
1  Gray,  4GG  ;  ante,  p.  56,  190,  note. 

^  The  following  were  the  pleadings  in  the  famous  ^sc  of  the  prosecution 
of  the  proprietor  of  The  Western  Times,  by  the  Bishop  of  Exeter,  for  a 
libel.  They  were  settled  by  eminent  counsel  on  both  sides,  and  will  be 
valuable,  as  precedents  that  have  been  subjected  to  the  keenest  scrutiny, 
and  ibund  to  Ijc  unimpeachable.     3  Cox,  C.  C.  Appendix,  p.  xxxviii. 


CHAP.  XXXIII.]  LIBEL.  857 

inafter   mentioned,    to    wit,    on   the   first   day   of    May    in 

the  year  of  our  Lord ,  a  certain  petition  of  one  James 

Shore,  to  the  lords  spiritual  and  temporal  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  in  parliament  as- 
sembled, had  been  and  was  presented  by  a  certain  peer  of  the 
realm,  to  wit,  by  Henry,  Lord  Brougham  and  Vanx,  to  the 
said  lords .  spiritual  and  temporal  in  parliament  assembled; 
and  that  the  said  Henry,  Lord  Brougham  and  Vaux  did,  to 
wit,  on  the  day  and  year  aforesaid,  and  on  the  occasion  of  the 
said-  presenting  the  said  petition  to  the  said  lords  spiritual 
and  temporal,  address  and  make  to  the  said  lords  spiritual 
and  temporal  in  parliament  assembled,  certain  observations 
with  reference  to  and  concerning  the  said  petition,  and  the 
several  matters  and  things  in  the  said  petition  contained;  and 
that  the  said  Henry,  Bishop  of  Exeter,  then  being  one  of  the 
said  lords  spiritual,  did,  on  the  day  and  year  aforesaid,  and  on 
the  occasion  aforesaid,  address  and  make  to  the  said  lords 
spiritual  and  temporal  in  parliament  assembled,  certain  ob- 
servations and  statements,  in  answer  and  with  reference  to 
the  said  observations  of  the  said  Henry,  Lord  Brougham  and 
Vaux,  and  with  reference  to  the  said  matters  and  things  con- 
tained in  the  said  petition  of  the  said  James  Shore.  And  the 
jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  Thomas  Latimer,  of  the  parish  of  Saint  John,  in  the 
city  and  county  of  the  city  aforesaid,  laborer,  well  knowing 
the  premises,  but  contriving  and  wickedly,  maliciously,  and 
unlawfully  intending  to  aggrieve  and  vilify  the  said  Henry, 
Bishop  of  Exeter,  and  to  injure  him  in  his  good  name,  fame, 
and  credit,  and  to  bring  him  into  public  scandal,  infamy,  and 
disgrace,  in  his  diocese,  and  among  the  clergy  of  his  said 
diocese,  and  the  other  clergy  of  this  realm,  and  also  among 
his  neighbors  and  other  good  and  worthy  subjects  of  this 
realm,  afterwards,  to  wit,  on  the  twenty-fourth  day  of  July  in 

the  year  of  our  Lord ,  with  force  and  arms,  at  the  parish 

aforesaid,  in  the  city  and  county  of  the  city  aforesaid,  in  a 
certain  newspaper  called,  to  wit,  The  Western  Times,  falsely, 
wickedly,  and  maliciously,  did  write  and  publish,  and  cause 
and  procure  to  be  written  and  published,  a   certain  false, 


358  LIBEL.  [chap,  xxxin. 

wicked  and  malicious,  scandalous  and  defamatory  libel,  of 
and  concerning  the  said  Henry,  Bishop  of  Exeter,  and  of 
and  concerning  him  as  such  bishop  as  aforesaid,  and  of  and 
concerning  the  matters  and  things  aforesaid,  in  the  words  and 
figures  following,  that  is  to  say,  "  Bishop  Phillpotts."  (Then 
follows  the  libel)  concluding  thus,  "  unfortunately  he  (mean- 
ing thereby  the  said  Henry,  Bishop  of  Exeter)  goes  quite  the 
other  way,  and  his  (meaning  thereby  the  said  Henry,  Bishop 
of  Exeter)  reply  is  so  directly  the  opposite  of  the  truth,  that 
he  (meaning  thereby  the  said  Henry,  Bishop  of  Exeter)  stands 
branded  as  a  consecrated,  careless  perverter  of  facts,  and 
one  who  does  no  credit  to  the  mitre  which  he  (meaning 
thereby  the  said  Henry,  Bishop  of  Exeter)  is  paid  two  hun- 
dred pounds  a  week,  or  thereabouts,  to  wear,"  etc.,  knowing 
the  same  to  be  false,  etc.,  contra  pacem,  etc. 

First  Plea.  —  And  now,  that  is  to  say,  on  the  eleventh  day 
of  January,  in  this  same  term,  before  our  said  Lady  the 
Queen,  at  Westminster,  cometh  the  said  Thomas  Latimer, 
by  Thomas  Baker,  his  attorney,  and  having  heard  the  said  in- 
dictment read,  saith  he  is  not  guilty  of  the  said  premises  in  the 
said  indictment  above  specified  and  charged  upon  him,  and 
of  this  the  said  Thomas  Latimer  put  himself  upon  the  coun- 
try, etc. 

Second  Plea.  —  And  for  a  further  plea  in  this  behalf  to  so 
much  of  the  first  and  fourth  counts  of  the  said  indictment,  as 
charged  upon  the  said  Thomas  Latimer,  the  writing  and  pub- 
lishing and  causing  and  procuring  to  be  written  and  published 
so  much  of  the  said  alleged  libels  in  the  said  first  and  fourth 
counts  respectively  mentioned,  as  imputes  to  or  charges 
against  Hemy,  Lord  Bishop  of  Exeter,  therein  respectively 
also  mentioned,  that  the  reply  of  him  the  said  Henry,  Lord 
Bishop  of  Exeter,  to  the  observations  of  Henry,  Lord 
Brougham  and  Vaux,  in  the  said  first  and  fourth  counts 
respectively  mentioned,  in  reference  to  the  petition  of  James 
Shore  therein  also  respectively  mentioned,  was  so  directly  op- 
posite to  the  truth,  that  the  said  Henry,  Lord  Bishop  of 
Exeter,  stands  branded  as  a  careless  perverter  of  facts,  the 
said  Thomas  Latimer  by  virtue  of  the  statute  in  such  case 


CHAP.  XXXIII.]  LIBEL.  ■  359 

made  and  provided  says,  that  before  the  writing  and  publish- 
ing of,  and  causing  and  procuring  to  be  written  and  published, 
so  much  of  the  said  alleged  libel  respectively  as  is  in  the 
introductory   part   of  this  plea   mentioned,  to   wit,  on   the 

twelfth  day  of  September  in]  the  year  of  our  Lord ,  the 

most  noble  Edward  Adolphus,  Duke  of  Somerset,  then  and 
thenceforth  and  until  and  at  the  time  of  the  writing  and  pub- 
lishing of,  and .  causing  and  procuring  to  be  written  and 
published,  so  much  of  the  said  alleged  libels  as  last  aforesaid, 
and  still  being  a  peer  of  the  realm  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  to  wit,  Duke  of  Somerset  and 
Baron  Seymour  of  Hacke,  in  the  county  of  Somerset,  had 
erected  and  built,  at  his  own  expense,  a  certain  chapel  for 
the  public  worship  of  God,  on  certain  lands  of  the  said 
Edward  Adolphus,  Duke  of  Somerset,  situate  in  the  ham- 
let of  Bridgetown,  in  the  parish  of  Berry  Pomeroy,  in  the 
county  of  Devon,  and  in  the  said  diocese  of  Exeter^  in  the 
said  first  and  fourth  counts  respectively  mentioned,  to  wit,  at 
the  said  parish  in  the  said  first  and  fourth  counts  respectively 
mentioned.  And  the  said  Thomas  Latimer  further  saith, 
that  afterwards  and  before  the  writing  and  publishing  of,  and 
causing  and  procuring  to  be  written  and  published,  so  much 
of  the  said  alleged  libels  as  aforesaid,  to  wit,  on  the  day  and 
year  last  aforesaid,  the  said  Edward  Adolphus,  Duke  of 
Somerset,  with  the  consent  of  the  Reverend  John  Edwards, 
clerk,  then  being  the  vicar  of  the  said  vicarage  and  parish 
church,  applied  to  and  requested  the  said  Henry,  Lord  Bishop 
of  Exeter,  then  being  Lord  Bishop  of  the  said  diocese  of 
Exeter,  and  the  ordinary  of  the  said  vicarage  and  parish 
church,  to  grant  his  license,  that  the  said  chapel  might  be 
opened  and  used  for  the  celebration  of  Divine  service  accord- 
ing to  the  rites  and  ceremonies  of  the  United  Church  of 
England  and  Ireland  by  public  authority  established,  to  wit, 
at  the  said  parish  in  the  said  first  and  fourth  counts  respect- 
ively in  that  behalf  mentioned.  And  the  said  Henry,  Lord 
Bishop  of  Exeter  then,  on  such  request  of  the  said  Edward 
Adolphus,  Duke  of  Somerset,  being  so  made  to  him  as  afore- 
said, stated  to  the  said  Edward  Adolphus,  Duke  of  Somerset, 


360  LIBEL.  [chap.  XXXIII. 

that  the  said  Henry,  Lord  Bishop  of  Exeter,  was  willing 
to  grant  such  license  as  aforesaid,  provided  the  said  Edward 
Adolphus,  Duke  of  Somerset,  would,  previously  to  the 
granting  thereof,  engage  and  undertake  with  and  to  the 
said  Henry,  Lord  Bishop  of  Exeter,  that  the  said  Edward 
Adolphus,  Duke  of  Somerset,  would,  to  the  satisfaction  of 
him  the  said  Henry,  Lord  Bishop  of  Exeter,  endow  the  said 
chapel  with  a  permanent  provision  for  the  maintenance  of  a 
minister  in  holy  orders  to  celebrate  such  Divine  service  as 
aforesaid ;  and  would  convey  and  assure  the  said  land 
v/hereon  the  said  chapel  was  built  as  aforesaid,  and  also  the 
said  chapel  so  and  in  such  manner  that  the  said  chapel  might 
be  for  ever  devoted  and  set  apart  to  and  for  such  Divine  ser- 
vice as  last  aforesaid ;  and  that  the  said  chapel  should,  in  the 
mean  time  and  until  such  endowment  and  conveyance  and 
assurance  as  aforesaid,  only  be  used  for  purposes  connected 
with  the  ministry  of  the  said  United  Church  of  England  and 
Ireland,  to  wit,  at  the  parish  aforesaid.  And  the  said  Thomas 
Latimer  further  saith,  that  afterwards  and  before  the  granting 
of  the  license  to  the  said  Edward  Adolphus,  Duke  of  Somer- 
set, by  the  said  Henry,  Lord  Bishop  of  Exeter,  as  hereinafter 
mentioned,  to  wit,  on  the  twenty-second  day  of  September 

in  the  year  of  our  Lord ,  and  thenceforth  always  until 

the  granting  of  such  license,  the  said  Edward  Adolphus, 
Duke  of  Somerset,  declined  to  enter  into  or  give  any  such 
engagement  or  undertaking  with  and  to  the  said  Henry,  Lord 
Bishop  of  Exeter,  as  aforesaid;  and  the  said  Henry,  Lord 
Bishop  of  Exeter,  thereupon,  then,  to  wit,  on  the  day  and 
year  last  aforesaid,  consented  to  grant  such  license  as  afore- 
said to  the  said  Henry  Adolphus,  Duke  of  Somerset,  without 
requiring  him  to  enter  into  or  give  any  such  engagement  or 
undertaking  as  aforesaid,  to  wit,  at  the  parish  last  aforesaid. 
And  the  said  Henry,  Lord  Bishop  of  Exeter,  afterwards  and 
before  the  writing  and  publishing  of,  and  causing  and  procur- 
ing to  be  writ  ten  and  j)ublishcd,  so  much  of  the  said  alleged 
libels  as  aforesaid,  to  wit,  on  the  ninth  day  of  November  in 

the  year  of  our  Tjord ,  in  accordance  with  the  consent 

so  given   by  hini  us  aforesaid,  the  said  Edward  Adolphus, 


CHAP.  XXXIII.]  LIBEL.  361 

Duke  of  Somerset,  having  declined  and  then  declining  to 
enter  into  and  give  and  not  theretofore  or  then  or  at  any  time 
since  having  entered  into  or  given  any  such  engagement  or 
undertaking  as  aforesaid,  did,  by  a  certain  license  there  sub- 
scribed by  him  the  said  Henry,  Lord  Bishop  of  Exeter,  and 
sealed  with  his  Episcopal  seal,  bearing  date  a  certain  day 
and  year  in  that  behalf  therein  named,  to  wit,  the  day 
and  year  last  aforesaid,  give  and  grant  his  license  unto  the 
said  Edward  Adolphus,  Duke  of  Somerset,  that  the  said 
chapel  might  be  forthwith  opened  and  used  for  the  celebra- 
tion of  Divine  service,  according  to  the  rites  and  ceremonies 
of  the  said  United  Church  of  England  and  Ireland,  by  a 
priest  or  minister  in  holy  orders,  to  be  for  that  purpose 
licensed  by  the  said  Henry,  Lord  Bishop  of  Exeter,  to  wit,  at 
the  parish  last  aforesaid.  And  the  said  Thomas  Latimer 
further  saith,  that  afterwards,  and  before  the  writing  and  pub- 
lishing of,  and  causing  and  procuring  to  be  written  and 
published,  so  much  of  the  said  alleged  libels  as  aforesaid,  to 

wit,  on  the  said  first  day  of  May  in  the  year  of  our  Lord , 

in  the  said  first  and  fourth  counts  respectively  mentioned,  the 
said  Henry,  Lord  Bishop  of  Exeter,  did,  in  reply  to  the  said 
observations  of  the  said  Henry,  Lord  Brougham  and  Vaux, 
in  the  said  first  and  fourth  counts  respectively  mentioned,  in 
reference  to  the  said  petition  of  the  said  James  Shore,  and  in 
the  said  observations  and  statements  addressed  and  made  by 
him,  the  said  Henry,  Lord  Bishop  of  Exeter,  in  answer  to  the 
said  observations  of  the  said  Henry,  Lord  Brougham  and 
Vaux,  as  therein  respectively  also  mentioned,  did  speak  and 
say  to  the  said  lords  spiritual  and  temporal,  in  parliament 
assembled,  of  and  concerning  the  said  observations  and  state- 
ments of  the  said  Henry,  Lord  Brougham  and  Vaux,  and  of 
and  concerning  the  said  Edward  Adolphus,  to  the  said 
Henry,'  Lord  Bishop  of  Exeter,  for  such  license  to  open  and 
use  the  same  as  aforesaid ;  and  of  and  concerning  such 
license  as  last  aforesaid ;  and  of  and  concerning  such  en- 
gagement and  undertaking  so  required  by  him,  the  said 
Henry,  Lord  Bishop  of  Exeter,  and  declined  to  be  entered 
into   and   given   by  the    said  Edward    Adolphus,   Duke   of 

31 


362,  LIBEL.  [chap,  xxxiil 

Somerset,  as  aforesaid ;  and  of  and  concerning  the  said 
petition  of  the  said  James  Shore,  and  the  matters  therein 
contained ;  and  of  and  concerning  the  premises,  the  words 
following,  that  is  to  say,  "  I "  (meaning  himself  the  said 
Henry,  Lord  Bishop  of  Exeter,)  "  should  wish  to  have  been 
excused  from  entering  into  the  circumstances  of  the  present 
case,"  (meaning  the  said  matters  and  things  contained  in  the 
petition  of  the  said  James  Shore,  as  aforesaid,)  "  but  my 
noble  and  learned  friend"  (meaning  the  said  Henry,  Lord 
Brougham  and  Vaux)  "  has  stated  several  matters "  (mean- 
ing the  said  matters  stated  by  the  said  Henry,  Lord  Brough- 
am and  Vaux)  "  in  his  said  observations  in  reference  to 
the  said  petition  of  the  said  James  Shore,  which  cannot  be 
left  unanswered.  It  is  certainly  true  the  noble  Duke  alluded 
to  "  (meaning  the  said  Edward  Adolphus,  Duke  of  Somer- 
set) "  built  the  chapel  in  question,"  (meaning  the  said  chapel 
hereinbefore  mentioned,  at  Bridgetown,  meaning  the  said 
hamlet  of  Bridgetown,  in  the  parish  of  Berry  Pomeroy  afore- 
said) ;  "  and  some  years  ago  the  noble  Duke,"  (meaning  the 
said  Edward  Adolphus,  Duke  of  Somerset)  "  applied  to  me  " 
(meaning  himself,  the  said  Henry,  Lord  Bishop  of  Exeter) 
"  to  consecrate  it "  (meaning  the  said  chapel).  "  Several  com- 
munications "  (meaning  the  said  request  of  the  said  Edward 
Adolphus,  Duke  of  Somerset,  for  the  said  license  to  open 
and  use  the  said  chapel,  and  the  said  requisitions  of  him,  the 
said  Henry,  Lord  Bishop  of  Exeter,  that  the  said  Edward 
Adolphus,  Duke  of  Somerset,  should  enter  into  and  give  such 
undertaking  and  engagement  as  aforesaid)  "  had  passed 
between  himself"  (meaning  himself,  the  said  Henry,  Lord 
Bishop  of  Exeter)  "  and  the  noble  Duke,"  (meaning  the  said 
Edward  Adolphus,  Duke  of  Somerset,)  "and  finally  I" 
(meaning  himself,  the  said  Henry,  Lord  Bishop  of  Exeter) 
"  consented  to  license  the  chapel,"  (meaning  the  chapel  afore- 
said,) "the  Duke"  (meaning  the  said  Edward  Adolphus, 
Duke  of  Somerset)  "undertaking  to  endow  it,"  (meaning  the 
said  chap(;l,)  "in  order  to  its  being  consecrated"  (meaning  in 
order  to  the  said  chapel  being  consecrated).  "  And  that 
mcanwhijt;   it  should  only  be  used  for  purposes  connected 


CHAP.  XXXIII.]  LIBEL.  363 

with  the  ministry  of  the  Protestant  Established  Church," 
(meaning  the  said  United  Church  of  England  and  Ireland, 
by  public  authority  established,)  "  both  of  which  engagements 
I "  (meaning  himself,  the  said  Henry,  Lord  Bishop  of  Exeter) 
"regret  to  state  have  been  violated  by  the  noble  Duke," 
(meaning  the  said  Edward  Adolphus,  Duke  of  Somerset,) 
"  for  reasons  which,  doubtless,  are  satisfactory  to  his  own 
mind,"  (meaning  the  mind  of  the  said  Edward  Adolphus, 
Duke  of  Somerset,)  "  though  I "  (meaning  himself,  the  said 
Henry,  Lord  Bishop  of  Exeter)  "  cannot  even  guess  what 
they  are,"  to  wit,  at  the  parish  last  aforesaid.  And  the  said 
Thomas  Latimer  further  saith,  that  it  was  for  the  public 
benefit  that  so  much  of  the  said  alleged  libels  in  the  said  first 
and  fourth  counts  respectively  mentioned,  as  in  the  intro- 
ductory part  of  this  plea  mentioned,  should  be  published,  by 
reason  that  it  is  for  the  public  benefit  that  when  statements 
opposite  of  the  truth  and  perversive  of  facts  are  made  by  a 
person  filling  a  high  public  oflSce,  to  wit,  of  Bishop  of  the 
said  United  Church  of  England  and  Ireland,  of  and  concern- 
ing the  character  and  conduct,  and  to  the  prejudice  and  dis- 
credit, of  another  person  standing  in  a  high  and  important 
public  position,  to  wit,  a  peer  of  the  realm  of  the  said 
United  Kingdom  of  Great  Britain  and  L-eland,  that  the  truth 
in  respect  of  the  matters  stated  should  be  published  and 
made  to  appear,  so  that  the  liege  subjects  of  our  Lady  the 
Queen  may  not  thereby  be  misled,  or  be  induced  to  form  an 
erroneous  or  ill-founded  opinion  respecting  the  character  and 
conduct  of  such  person  as  last  aforesaid,  to  wit,  at  the  parish 
last  aforesaid.  Wherefore  he  the  said  Thomas  Latimer, 
at  the  said  several  times,  etc.,  in  the  said  first  and  fourth 
counts  in  that  behalf  respectively  mentioned,  at  the  said 
parish  therein  also  in  that  behalf  respectively  mentioned, 
wrote  and  published,  and  caused  and  procured  to  be  written 
and  published,  so  much  of  the  said  alleged  libels,  in  the  said 
first  and  fourth  counts  respectively  mentioned,  as  imputes  to 
or  charges  against  the  said  Henry,  Lord  Bishop  of  Exeter, 
that  the  said  reply  of  him,  the  said  Henry,  Lord  Bishop  of 
Exeter,  to  the  said  observations  of  the  said   Henry,   Lord 


364  LIBEL.  [chap.  XXXIII. 

Brougham  and  Vaux,  in  reference  to  the  said  petition  of  the 
said  James  Shore,  was  so  directly  opposite  of  the  truth,  that 
the  said  Henry,  Lord  Bishop  of  Exeter,  stands  branded  as  a 
careless  perverter  of  facts,  as  he,  the  said  Thomas  Latimer, 
lawfully  might,  for  the  cause  aforesaid,  which  are  the  same 
writing  and  publishing  as  are  in  the  said  first  and  fourth 
counts  respectively,  and  in  the  introductory  part  of  this  plea, 
mentioned. 

And  this  the  said  Thomas  Latimer  is  ready  to  verify,  etc. 
Wherefore  he  prays  judgment  if  our  said  Lady  the  Queen 
will  or  ought  further  to  impeach  him  of,  and  concerning  the 
premises  in  the  introductory  part  of  this  plea  mentioned ;  and 
that  he,  the  said  Thomas  Latimer,  may  be  dismissed  and  dis- 
charged of  the  court  here  of  and  concerning  the  premises  last 
aforesaid. 

First  Replication.  —  And  whereupon  Charles  Francis 
Robinson,  Esquire,  coroner  and  attorney  of  our  said  Lady 
the  Queen,  in  the  court  of  our  said  Lady  the  Queen,  before 
the  Queen  herself,  who  prosecuteth  for  our  said  Lady  the 
Queen  in  this  behalf,  being  present  here  in  court,  and  having 
heard  the  said  plea  of  the  said  Thomas  Latimer,  by  him  first 
above  pleaded  in  bar,  and  whereof  the  said  Thomas  Latimer 
hath  put  himself  upon  the  country,  for  our  said  Lady  the 
Queen  doth  the  like. 

Second.  —  And  as  to  the  plea  of  the  said  Thomas  Latimer 
by  him  secondly  above  pleaded,  the  said  coroner  and  attorney 
of  our  said  Lady  the  Queen,  in  the  court  of  our  said  Lady 
the  Queen,  before  the  Queen  herself,  who  prosecuteth  for  our 
said  Lady  the  Queen  in  this  behalf,  being  present  here  in 
court,  having  heard  the  said  pica  of  the  said  Thomas  Latimer, 
by  him  secondly  above  pleaded  in  bar,  for  our  said  Lady  the 
Queen  saith,  that  for  any  thing  by  the  said  Thomas  Latimer 
in  his  said  second  plea  alleged,  our  said  Lady  the  Queen 
ought  not  to  be  barred  from  prosecuting  the  said  indictment 
against  the  said  'J'liouuis  Latimer,  of  and  concerning  the 
jjremises  in  the  introductory  part  of  the  said  second  plea 
mentioned,  because  he  says  that  the  said  Thomas  Latimer,  of 
his  owwi  WToiiij:  and  without  tlui  cause  and  matter  of  defence 


CHAP.  XXXIII.]  LIBEL.  365 

in  his  said  second  plea  alleged,  falsely,  wickedly,  and  mali- 
ciously wrote  and  published,  and  caused  to  be  written  and 
published,  so  much  of  the  said  alleged  libels  in  the  said  first 
and  fourth  counts  respectively  mentioned,  as  is  in  the  intro- 
ductory part  of  the  second  plea  mentioned,  in  manner  and 
form  as  in  the  said  first  and  fourth  counts  of  the  said  indict- 
ment is  alleged-  And  this  the  said  coroner  and  attorney 
prays  may  be  inquired  of  by  the  country,  etc.  And  the  said 
Thomas  Latimer  doth  the  like. 


2.  Indictment  for  a  false  defamatory  libel} 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of 
the  parish  of  B.  in  the  county  of  M.,  schoolmaster,  contriving, 
and  unlawfully,  wickedly,  and  maliciously  intending  to  injure, 
vilify,  and  prejudice  one  J.  N.,  and  to  deprive  him  of  his  good 
name,  fame,  credit,  and  reputation,  and  to  bring  him  into 
great  contempt,  scandal,  infamy,  and  disgrace,  on  the  first  day 

of  August  in  the  year  of  our  Lord ,  with  force  and  arms, 

at  the  parish  aforesaid,*  in  the  county  aforesaid,  unlawfully, 
wickedly,  and  maliciously  did  write  and  publish,  and  cause 
and  procure  to  be  written  and  published,^  a  false,  scandalous, 
malicious,  and  defamatory  libel,  in  the  form  of  a  letter 
directed  to  the  said  J.  N.,  or,  if  the  publication  were  in  any 
other  manner,  omit  the  words  "in  the  form,"  etc.,  containing 
divers  false,  scandalous,  malicious,  and  defamatory  matters 
and  things  of  and  concerning  the  said  J.  N.,  and  of  and  con- 
cerning, etc.,  here  insert  such  of  the  subjects  of  the  libel  as  it 
may  be  necessary  to  refer  to  by  the  innuendoes,  in  setting-  ovt 
the  libel;  according  to  the  tenor  following,  that  is  to  say,  here 
set  out  the  libel,  together  ivith  such  innuendoes  as  may  be  neces- 
sary to  render  it  intelligible ;  the  said  J.  S.  then  and  there 


^  Archbold,  (Crim.  PI.  Am.  ed.  1846),  724.  For  a  precedent  for  a 
blasphemous  libel,  see  ante,  p.  60. 

-  This  averment  is  not  bad  for  duplicity.  2  Gabbett,  Crim.  Law,  234  ; 
Commonwealth  v.  Twitchell,  4  Cushing,  74,  75  ;  Commonwealth  v.  Eaton,  15 
Pickering,  273. 

31* 


366  LIBEL.  [chap.  XXXIII. 

well  knowing  the  said  defamatory  libel  to  be  false ;  to  the 
great  damage,  scandal,  and  disgrace  of  the  said  J.  N.,  to  the 
evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

3.  Indictment  for  a  libel  against  a  judge  and  jury,  in  the  execu- 
tion of  their  duties.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 
to  wit,  at  the  sittings  at  nisi  prius,  holden  after  Trinity  Term, 
to  wit,  on  the  twentieth  day  of  June  in  the  year  of  our  Lord 

,  at  Westminster,  in  the  county  of  Middlesex,  before  the 

Right  Honorable  Sir  Frederick  Pollock,  chief  baron  of  our 
said  Lady  the  Queen  of  her  Court  of  Exchequer  at  West- 
minster aforesaid,  a  certain  issue  duly  joined  in  the  said  court 
between  one  A.  B.  and  one  C.  D.,  in  a  certain  action  on 
promises,  in  which  the  said  A.  B.  was  plaintilT,  and  the  said 
C.  D.  defendant,  came  on  to  be  tried  in  due  form  of  law,  and 
was  then  and  there  tried  by  a  certain  jury  of  the  country  in 
that  behalf  duly  sworn,  and  taken  between  the  parties  afore- 
said. And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  J.  S.late  of  the  parish  of  B.in  the  county 
of  M.,  printer,  wickedly  and  maliciously  contriving  and  in- 
tending to  bring  the  administration  of  justice  in  this  kingdom 
into  contempt,  and  to  scandalize  and  vilify  the  said  Sir  Fred- 
erick Pollock,  and  the  jurors,  by  whom  the  said  issue  was  so 
tried  as  aforesaid,  and  to  cause  it  to  be  believed  that,  here 
state  the  effect  of  the  libel;  on  the  twenty-first  day  of  June  in 
the  year  last  aforesaid,  with  force  and  arms,  at  the  parish 
aforesaid,  in  tiie  county  aforesaid,  wickedly  and  maliciously 
did  write  and  j)ublish,  and  cause  and  procure  to  be  written 
and  published  a  certain  false,  wicked,  malicious,  and  scan- 
dalous lil)el,  of  and  concerning  the  administration  of  justice 
in  this  kingdom,  and  of  and  concerning  the  trial  of  the  said 
issu(!,  and  of  and  concerning  the  said  Sir  Frederick  Pollock, 
and  the  jurors  by  whom  the  said  issue  was  so  tried  as  afore- 

»  ArchboM,  Crim.  PI.  (Am.  cd.  181C),  C95. 


CHAP,  xxxiil]  libel.       .  367 

said,  according  to  the  tenor  following,  that  is  to  say ;  here  set 
out  the  libel,  together  with  such  innuendoes  as  may  be  requisite ; 
to  the  great  scandal  and  reproach  of  the  administration  of 
justice  in  this  kingdom,  in  contempt,  etc.,  to  the  evil  example 
of  all  others  in  like  case  offending,  and  against  the  peace,  etc. 

4.  Indictment  for  slanderous  words  to  a  magistrate} 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 

wit,  on  the  third  day  of  August  in  the  year  of  our  Lord ,  at 

the  parish  of  B.  in  the  county  of  M.,  one  J.  S.  was  brought  be- 
fore J.  N.,  esquire,  then  and  yet  being  one  of  the  justices  of  the 
peace  within  and  for  the  said  county  of  M.,  legally  authorized 
and  duly  qualified  to  perform  and  discharge  the  duties  of  said 
office,  and  the  said  J.  S.  was  then  and  there  charged  before  the 
said  J.  N.,  upon  the  oath  of  one  A.  C,  that  the  said  J.  S.  had 
then  lately  before  feloniously  taken,  stolen,  and  carried  away 
divers  goods  and  chattels  of  the  said  A.  C.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  J.  S.,  wickedly  and  maliciously  intending  and  con- 
triving to  scandalize  and  vilify  the  said  J.  N.  as  such  justice 
as  aforesaid,  and  to  bring  the  administration  of  justice  in  this 
Commonwealth  into  contempt,  afterwards,  and  whilst  the  said 
J.  N.,  as  such  justice  as  aforesaid,  was  examining  and  taking 
the  depositions  of  divers  witnesses  against  the  said  J.  S.  in  that 
behalf,  to  wit,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  wickedly  and  maliciously, 
in  the  presence  and  hearing  of  divers  good  citizens  of  said 
Commonwealth,  did  publish,  utter,  pronounce,  declare,  and 
say,  with  a  loud  voice  to  the  said  J.  N.,  and  whilst  the  said 
J.  N.  was  so  acting  as  such  justice  as  aforesaid,  "  You  are  a 
scoundrel  and  a  liar ;  you  would  hang  your  own  father  if  you 
could  make  a  groat  by  his  execution ; "  to  the  great  scandal 
and  reproach  of  the  administration  of  justice  in  this  Com- 
monwealth, to   the  great  scandal  and  damage  of  the  said 


»  Archbold,  Crim.  PI.  (Am.  ed.  184G),  956. 


368  .       LIBEL.  [chap.  XXXIII. 

J.  N.,  in  contempt,  etc.,  to  the  evil  example  of  all  others  in 
the  like  case  offending,  and  against  the  peace,  etc. 


5.  Indictment  for  a  libel  on  an  attorney?- 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  N.,  gentle- 
man, at  the  time  of  publishing  the  false,  scandalous,  mali- 
cious, and  defamatory  libel  hereinafter  mentioned,  was,  and 
long  before,  and  from  thence  hitherto  hath  been,  and  still  is, 
one  of  the  attorneys  of  the  Supreme  Judicial  Court  of  said 
Commonwealth,  and  in  the  office,  practice,  and  business  of 
an  attofney  has  been,  during  all  that  time,  retained  and  em- 
ployed by  divers  citizens  of  said  Commonwealth,  to  prose- 
cute and  defend  for  them,  as  their  attorney,  agent,  and  solici- 
tor, divers  suits  and  businesses  in  the  said  court,  and  also  to 
do  and  negotiate  other  affairs  and  business  as  such  attorney, 
to  wit,  at  the  parish  of  B.  in  the  county  of  M. ;  and  the  said 
J.  N.,  during  all  that  time,  hath  acted  in  the  most  fair  and 
honorable  manner  in  the  exercise  of  his  said  profession,  to 
wit,  at  the  parish  aforesaid,  in  the  county  aforesaid.  And  that 
also,  before  the  publishing  of  the  said  false,  scandalous, 
malicious,  and  defamatory  libel  hereinafter  mentioned,  to  wit, 

on  the  third  day  of  August  in  the  year  of  our  Lord ,  at 

the  parish  aforesaid,  in  the  county  aforesaid,  the  said  J.  N. 
was,  in  his  business  and  profession  of  an  attorney,  employed 
and  retained  by  one  A.  C.  to  commence  and  prosecute  a  cer- 
tain suit  and  action  at  law  upon  the  behalf  of  the  said  A.  C. 
against  one  J.  S.,  for  the  recovery  of  a  certain  sum  of  money 
then  and  long  before  due  and  owing  to  the  said  A.  C.  from 
and  l)y  the  said  J.  S.,  and  then  remaining  unpaid;  and  the 
said  .J.  N.  in  pursuance  of  the  instructions  he  then  and  there 
received  from  the  said  A.  C.  in  that  behalf,  and  of  his  retainer 
as  aforesaid,  did  then  and  there  commence  and  prosecute  the 
said  action  against  the  said  J.  S.,  as  in  duty  he  was  bound  to 
do ;  but  tlie  said  J.  N.,  in  the  prosecution  of  the  said  action, 
so  far  from  acting  with  any  unnecessary  severity  towards  the 

»  Archbold,  Crim.  Fl.  (Am.  cd.  18in),  729. 


CHAP.  XXXIII.]  LIBEL.  369 

said  .T.  S.,  on  the  contrary  thereof,  then  and  there  acted 
towards  the  said  J.  S.  in  as  lenient  a  manner  as  was  con- 
sistent with  his  duty  as  attorney  to  the  said  A.  C.  as  afore- 
said. And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  J.  S.  late  of  the  parish  aforesaid, 
in  the  county  aforesaid,  grocer,  well  knowing  the  premises, 
but  contriving,  and  wickedly,  maliciously,  and  unlawfully  in- 
tending to  aggrieve  and  vilify  the  said  J.  N.,  and  to  injure 
him  in  his  good  name,  fame,  and  credit,  and  to  bring  him  into 
public  scandal,  infamy,  and  disgrace,  with  and  amongst  all 
his  clients  and  neighbors,  and  other  good  and  worthy  citizens 
of  said  Commonwealth,  and  also  to  injure  the  said  J.  N.  in 
his  said  business  and  profession  of  an  attorney,  and  to  cause 
him  to  be  esteemed  and  taken  to  be  a  negligent  and  corrupt 
practiser  in  his  said  profession,  and  to  be  a  person  not  fit  to 
be  intrusted  and  employed  therein,  afterwards,  to  wit,  on  the 
tenth  day  of  August  in  the  year  last  aforesaid,  with  force  and 
arms,  ^t  the  parish  aforesaid,  in  the  county  aforesaid,  falsely, 
wickedly,  and  maliciously  did  write  and  publish,  and  cause 
and  procure  to  be  written  and  published,  in  the  form  of  a  let- 
ter directed  to  the  said  A.  C,  a  certain  false,  wicked,  mali- 
cious, and  scandalous  libel  of  and  concerning  the  said  J.  N., 
and  of  and  concerning  his  conduct  in  his  business  and  pro- 
fession of  attorney,  and  of  and  concerning  the  said  action,  so 
commenced  and  prosecuted  against  the  said  J.  S.  by  the  said 
J.  N.,  for  and  as  the  attorney  of  the  said  A.  C.  as  aforesaid, 
and  of  and  concerning  the  conduct  of  the  said  J.  N.  as  attorney 
in  the  said  action,  according  to  the  tenor  following,  that  is  to 
say,  here  set  out  the  libel,  with  such  innuendoes  as  may  he  iieces- 
sarij ;  to  the  great  scandal,  infamy,  and  disgrace  of  the  said 
J.  N.,  to  the  evil  example  of  all  others  in  the  like  case  offend- 
ing, and  against  the  peace,  etc. 

6.  Indictment  for  hanging  a  man  in  effigy} 
Commencetnent  as  in  precedent  number  two  to  the  asterisk, 

1  Archbold,  Crim.  PI.  (Am.  ed.  184G),  730. 


370  LIBEL.  [chap.  xxxm. 

and  then  as  folloivs :  in  the  county  aforesaid,  unlawfully, 
wickedly,  and  maliciously  did  make,  and  cause  and  procure 
to  be  made,  a  certain  gibbet  and  gallows,  and  also  a  certain 
effigy  and  figure,  intended  to  represent  the  said  J.  N. ;  and 
then  and  there  unlawfully,  wickedly,  and  maliciously  did 
erect,  set  up,  and  fix,  and  cause  and  procure  to  be  erected,  set 
up,  and  fixed,  the  said  gibbet  and  gallows,  in  a  certain  yard 
and  place  near  unto  a  certain  common  highway,  there  situate, 

called  ,   and  near  to  a  certain  ferry  called  the   Horse 

Ferry,  where  the  said  J.  N.  was  used  and  accustomed  to  ply 
in  the  way  of  his  trade  and  business  of  a  waterman ;  and 
then  and  there  unlawfully,  wickedly,  and  maliciously  did 
hang  up  and  suspend,  and  cause  and  procure  to  be  hung  up 
and  suspended,  the  said  effigy  and  figure,  to  and  upon  the 
said  gibbet  and  gallows,  with  the  name  of  the  said  J.  N.  in- 
scribed on  a  piece  of  wood,  and  affixed  to  the  said  effigy  and 
figure,  together  with  divers  scandalous  inscriptions  and  de- 
vices affixed  upon  and  about  the  same,  reflecting  on  the*  char- 
acter of  the  said  J.  N. ;  and  did  then  and  there  keep  and 
continue,  and  cause  and  procure  to  be  kept  and  continued, 
the  said  gibbet  and  gallows,  so  erected  and  set  up  as  afore- 
said, with  the  said  effigy  and  figure  hung  up  and  suspended 
to  and  from  the  same,  as  aforesaid,  together  with  the  several 
inscriptions  and  devices  aforesaid,  so  affixed  as  aforesaid,  for 
a  long  space  of  time,  to  wit,  for  the  space  of  four  days  then 
next  following,  and  during  all  that  time  unlawfully,  wickedly, 
and  maliciously  did  then  and  there  publish  and  expose  the 
said  gibbet  and  gallows  with  the  said  effigy  and  figure 
thereon,  to  the  sight  and  view  of  divers  good  and  worthy  cit- 
izens of  said  Commonwealth,  passing  and  repassing  in  and 
along  the  highway  aforesaid ;  to  the  great  scandal,  infamy, 
and  disgrace  of  the  said  J.  N.,  to  the  evil  example  of  all  others 
in  the  like  case  offending,  and  against  the  peace,  etc. 


CHAPTER    XXXIV 


MAINTENANCE. 

"  Both  species  of  this  crime  are,"  says  Professor  Greenleaf, 
"  in  some  form  or  other,  forbidden  by  statutes,  in  nearly  all  of 
the  United  States ;  but  the  common  law  is  still  conceived  to 
be  in  force,  where  it  has  not  been  abrogated  by  statute.  The 
indictment  charges,  in  substance,  that  the  defendant  unjustly 
and  unlawfully  maintained  and  upheld  a  certain  suit,  pend- 
ing in  a  certain  court,  describing  it,  to  the  manifest  hinderance 
and  disturbance  of  public  justice."  ^  Prosecutions  for  main- 
tenance are  now  very  rarely  instituted ;  for  a  number  of 
persons  are  generally  implicated  in  this  offence,  and  then  the 
common  practice  is,  to  indict  them  for  a  conspiracy. 


Indictment  for  maintenance. 

The  jurors,  etc.,  upon  their  oath  present,  that  C,  D.  late  of 
B.  in  the  county  of  S.,  yeoman,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, did  unjustly  and  unlawfully  maintain  and  uphold  a  cer- 
tain suit,  which  was  then  and  there  in  the,  here  describe  the 
court  in  which  the  action  loas  then  pending,  between  one  E.  F., 
plaintiff,  and  one  J.  N.,  defendant,  in  an  action  of  contract, 
on  behalf  of  the  said  E.  F.,  against  the  said  J.  N.,  and  then 
and  there  in  and  for  the  maintenance  of  said  suit,  did  expend 


1  3  Greenleaf  on  Ev.  §  180,  181 ;  2  Deacon,  Crim.  Law,  843  ;  1  Gabbett, 
Grim.  Law,  142  ;  1  Starkie,  Crim.  PI.  (London  ed.  1828),  158. 


372  MAINTENANCE.  [CHAP.  XXXIII. 

a  large  sum  of  money,  to  wit,  the  sum  of  one  thousand  dol- 
lars ;  to  the  manifest  hinderance  and  disturbance  of  justice, 
to  the  great  damage  of  the  said  J.  N.,  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


CHAPTER    XXXV. 

MALICIOUS   MISCHIEF   AND    WILFUL  TRESPASS. 

1.  Indictment  for  killing  a  horse.  —  Mass.  Rev.  Sts.  ch. 
126,  §  39. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  a  certain  horse,  ("  any  horses,  cattle, 
or  other  beasts," )  of  the  value  of  one  hundred  dollars,  of  the 
property  of  one  A.  B.,  then  and  there  wilfully  and  maliciously 
did  kill ;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. 


2.  For  maiming  a  horse.  —  Mass.  Rev.  Sts.  ch.  126,  §  39. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  with  a  certain  sharp  instrument, 
called  a  bill-hook,  wilfully  and  maliciously  did  strike  a  cer- 
tain horse,  of  the  value  of  one  hundred  dollars,  of  the  goods 
and  chattels  of  one  A.  B.,  in  and  upon  the  left  shoulder  of 
the  said  horse,  giving  to  the  said  horse  thereby  then  and 
there,  by  such  striking  as  aforesaid,  in  and  upon  the  said  left 
shoulder  of  the  said  horse,  one  deep  wound,  of  the  breadth  of 
five  inches,  and  of  the  depth  of  four  inches,  and  thereby  did 

32 


374  MALICIOUS   MISCHIEF,   ETC.  [CHAP.  XXXV. 

then  and  there  wilfully  and  maliciously  maim  the  said  horse ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


3.  For  poisoning  a  horse.  —  Mass.  Rev.  Sts.  ch.  126,  §  39.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  wilfully  and  maliciously  did  admin- 
ister to  a  certain  horse,  of  the  value  of  two  hundred  dollars, 
of  the  property  of  one  E.  F.,  a  large  quantity,  to  wit,  two 
drachms,  of  a  certain  poison  called  arsenic  ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


4.  For  heating  a  horse.  —  Rev.  Sts.  of  Mass.  ch.  130,  §  22.2 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  unlawfully  and  cruelly  did  beat  and 
torture  a  certain  horse,  of  the  property  of  the  said  C.  D. ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


^  This  is  an  ofTence  at  common  law.  Commonwealtli  v.  Leach,  1  IMassa- 
chusetts,  (Rand's  ed.),  59.  If  a  person  mix  poison  with  the  corn  intended 
for  the  feed  of  eight  horses,  and  then  gives  each  horse  his  feed  from  this 
mixture,  an  indictment,  charging  that  he  did  administer  the  poison  to  the 
eight  horses,  is  correct.     Rex  v.  Mogg,  4  Carrington  &  Payne,  3G4. 

'  See  Rcgina  v.  Whiteman,  25  Eng.  Law  and  Eq.  Reps.  SUO,  and  edJIor's 
note. 


CHAP.  XXXV.]  MALICIOUS   MISCHIEF,   ETC.  375 


5.  For  exposing  a  poisonous  substance  ivith  intent  that  it  should 

be  taken  and  swallowed  by  a  horse.  — Mass.  Rev.  Sts. 
ch.  126,  §  39. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord  ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  wilfully  and  maliciously  did 
expose  to  a  certain  horse,  of  the  value  of  one  hundred  dol- 
lars, of  the  property  of  one  A.  B.,  a  certain  poisonous  sub- 
stance, that  is  to  say,  two  drachms  of  arsenic,  with  intent 
that  the  said  poisonous  substance  should  be  then  and  there 
taken  and  swallowed  by  the  said  horse ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

6.  For  injuring  a  horse  by  shooting  him.  —  Mass.  Rev.  Sts. 

ch.  126,  §  30.1 

The  jurors,  etc.,  upon  their  oath  present,  that  Robert  "Wal- 
den,  late  of  B.  in  the  county  of  S.,  laborer,  on  the  first  day 

of  June  in  the  year  of  our  Lord ,  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  a  certain  mare,  of 
the  value  of  fifty  dollars,  of  the  goods,  chattels,  and  personal 
property  of  one  Robert  Noble,  did  then  and  there  wilfully 
and  maliciouMy  injure,  by  then  and  there  wilfully  and  mali- 
ciously shooting  and  discharging  a  certain  gun,  which  gun 
was  then  and  there  loaded  with  powder  and  leaden  shot, 
at  and  against  the  said  mare,  whereby  the  said  mare  was 
then  and  there  severely  wounded  in  the  side,  hip,  and  shoul- 
der of  the  said  mare ;  and  thereby  was  greatly  injured  and 
rendered  of  little  value ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

^  Commonwealth  v.  Walden,  3  Gushing,  558. 


376  MALICIOUS   MISCHIEF,  ETC.  [CHAP.  XXXV. 


7.  For  breaking  doivn  a  dam.  —  Mass.  Rev.  Sts.  ch.  126,  §  40. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  with  force  and  arms,  at  B.  in  the 

county  of  S.,  wilfully  and  maliciously  did  break  down,  in- 
jure, and  destroy  a  certain  dam  there  situate,  of  the  value  of 
one  thousand  dollars,  of  the  property  of  one  A.  B. ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


8.  For   destroying  the   machinery   of  a   ivater-mill. —  Mass. 

Rev.  Sts.  ch.  126,  §  40. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  a  certain  belt  of  the  value  of 
five  dollars,  of  the  property  of  one  A.  B.,  the  same  then  and 
there  being  a  part  of  the  machinery  of  a  certain  water-mill, 
of  the  property  of  the  said  A.  B.  there  situate,  then  and  there 
wilfully  and  maliciously  did  cut,  injure,  and  destroy ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

9.  For  drawing  off  the  water  contained  in  a  mill-pond.  —  Mass. 

Rev.  Sts.  ch.  126,  §  40. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  wilfully,  wantonly,  and  without  color  of 
right,  did  draw  oil'  the  water,  of  the  value  of  one  thousand 
dollars,  of  the  projxTty  of  one  A.  B.,  tlien  and  there  contained 
in  a  certain  mill-pond  there  situate,  of  the  jM'operty  of  the 
said  A.  B. ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


I 


CHAP.  XXXV.]  MALICIOUS  MISCHIEF,   ETC.  377 


10.  For  cutting  down  an  ornamental  tree.  —  Mass.  Rev.  Sts. 

ch.  126,  §  42. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  a  certain  elm-tree  not  his  own, 
of  the  value  of  ten  dollars,  of  the  property  of  one  A.  B.,  then 
and  there  standing  and  growing  for  shade  and  ornament,  then 
and  there  wilfully,  and  maliciously,  wantonly,  and  without 
cause,  did  cut  down,  injure,  and  destroy ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

11.  For  destroying  a  tree  growing  in  a  cemetery.  —  Mass. 

St.  1841,  ch.  114,  §  6. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  one  willow  tree,  of  the  value 
of  ten  dollars,  of  the  property  of  one  J.  N.,  then  and  there 
placed  within  the  limits  of  a  certain  cemetery  there  situate, 
unlawfully,  wilfully,  and  maliciously  did  deface,  injure,  and 
destroy;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to,  etc. 

12.  For  breaking  glass  in  a  building.  —  Mass.  Rev.  Sts.  ch. 

126,  §  42. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  wilfully,  maliciously,  wantonly,  and 
without  cause  did  break  and  destroy  the  glass,  to  wit,  ten 
panes  of  window  glass,  each  of  the  value  of  one  dollar,  of 
the  property  of  one  A.  B.,  in  a  certain  building  there  situate, 

*32 


378  MALICIOUS   MISCHIEF,   ETC.  [CHAP.  XXXV. 

not  his  the  said  C.  D.'s  own,  but  which  building  then  and 
there  belonged  to  and  was  the  property  of  the  said  A.  B.,  the 
said  glass  then  and  there  being  parcel  of  the  realty,  to  wit, 
of  the  building  aforesaid ;  ^  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


13.  For  breaking  down  a  fence.  —  Mass.    Rev.    Sts.   ch. 

126,  §  42. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  maliciously  did  break  down,  injure, 
mar,  and  deface  a  certain  fence,  of  the  value  of  fifty  dollars, 
of  the  property  of  one  A.  B.,  then  and  there  belonging  to 
and  inclosing  a  certain  parcel  of  land  there  situate,  not  his 
the  said  C.  D.'s  own,  but  which  land  was  then  and  there  the 
property  of  the  said  A.  B.,  the  said  fence  then  and  there 
being  parcel  of  the  realty,  to  wit,  of  the  land  aforesaid ; 
thereby  then  and  there  by  committing  the  trespass  as  afore- 
said, doing  injury  to  the  said  A.  B.  to  an  amount  exceeding 
the  sum  of  fifteen  dollars,  to  wit,  the  sum  of  fifty  dollars ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

14.  For  breaking  doivn  a  guidchoard.  —  Mass.  Rev.  Sts.  ch. 

126,  §  43. 

The  jurors,  etc.,  upon  their  oath  present,  that  C  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  Ihe  county  aforesaid,  a  certain  guideboard,  of  the  value 
of  five  dollars,  of  the  property  of  the  inhabitants  of  the  town 
of  ]>.,  in  Ihe  county  uforesuid,  erected  u])on  a  certain  high- 


'  This  is  a  necessary  allegation.     Commonwealth  v.  Bean,  The  Monthly 
Law  Reporter,  vol.  6,  N.  s.  887. 


CHAP.  XXXV.]  MALICIOUS   MISCHIEF,   ETC.  379 

way,  there,  wilfully  and  maliciously  did  break  down,  injure, 
and  destroy ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

15.  For  cutting  down  a  timber  tree.  —  Mass.   Rev.  Sts.  ch. 

126,  §  44. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 

B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  wilfully  did  commit  a  trespass  by 
then  and  there  unlawfully,  wilfully,  and  maliciously  cutting 
down  certain  timber,  to  wit,  one  oak  tree,  of  the  value  of 
ten  dollars,  of  the  property  of  one  J.  N.,  then  standing  and 
growing  on  the  land  of  the  said  J.  N.  there  situate,  the  said 

C.  D.  then  and  there  not  having  any  interest  or  property  in 
the  said  tree,  and  the  said  C.  D.  not  being  then  and  there  first 
licensed  by  the  said  J.  N.  to  cut  the  same  as  aforesaid ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


16.  For  destroying  plants,  etc.,  in  a  garden,  on  the  Lord^s 
day.  —  Mass.  Rev.  Sts.  ch.  126,  §  45. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,   the  same  being  the  Lord's  day,  with 

force  and  arms,  at  B.  in  the  county  of  S.,  wilfully  did  commit 
a  trespass,  by  then  and  there  on  the  said  Lord's  day,  enter- 
ing on  the  garden  of  one  J.  N.  there  situate,  without  the 
permission  of  the  said  J.  N.,  the  owner  of  the  said  garden, 
with  intent  then  and  there  the  fruit,  to  wit,  fifty  pounds 
weight  of  grapes,  of  the  value  of  fifty  cents  each  pound,  of 
the  property  of  the  said  J.  N.,  then  and  there  growing  and 
being  in  the  garden  aforesaid,  unlawfully  and  maliciously 
to   cut,  take,  and   carry   away ;    against  the  peace  of  said 


380  MALICIOUS   MISCHIEF,   ETC.  [CHAP.  XXXV. 

Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

17.  For  malicious  injury  to  ice  taken  as  an  article  of  merchan- 
dise.—Mslss.  Rev.  Sts.  1850,  eh.  114. 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  January  in  the  year  of  our  Lord ,  there  was  and 

yet  is  a  certain  pond  of  water  called  Fresh  Pond,  situate  at 
C.  in  the  county  of  M.,  of  the  property  of  one  J.  N.,  from  the 
waters  of  which  pond,  on  the  said  first  day  of  January  in  the 
year  aforesaid,  ice  was  taken  by  the  said  J.  N.  as  an  article 
of  merchandise.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  C.  D.  late  of  C.  in  the 
county  of  M.,  laborer,  on  the  said  first  day  of  January  in  the 
year  aforesaid,  with  force  and  arms,  at  C.  aforesaid,  in  the 
county  aforesaid,  well  knowing  the  premises,  the  ice  then  and 
there  being  upon  the  waters  aforesaid,  wilfully,  maliciously, 
and  without  right  or  license,  did  cut,  injure,  mar,  damage, 
and  destroy,  whereby  the  taking  of  the  ice  aforesaid,  was  then 
and  there  hindered,  and  the  value  of  the  same  was  then  and 
there  diminished  as  an  article  of  merchandise  as  aforesaid ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


18.  For  destroying,  by  explosion,  a  'divelling-liouse.  —  Mass. 
St.  1851,  ch.  129,  §  1. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  th(;  county  aforesaid,  by  the  explosion  of  a  certain  explosive 
substuncc,  tiiat  is  to  say,  gunpowder,  the  dwelling-house  of 
one  A.  B.  there  situate,  feloniously,  wilfully,  and  maliciously 
did  unhiwfiilly  destroy;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


CHAP.  XXXV.]  MALICIOUS   MISCHIEF,   ETC.  381 


19.  For  exploding  gunpowder  in  a  house,  ivith  intent,  etc. 
Mass.  St.  1851,  ch.  129,  §  2. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms  at  B.  aforesaid, 

in  the  county  aforesaid,  feloniously,  wilfully,  and  maliciously 
did  explode  in  the  dwelling-house  of  one  A.  B.  there  situate, 
a  certain  explosive  substance,  that  is  to  say,  gunpowder,  with 
intent  thereby  then  and  there  one  J.  N.,  in  the  said  dwelling- 
house  then  and  there  being,  feloniously,  wilfully,  and  mali- 
ciously to  injure  and  destroy ;  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

20.  For  defacing  a  dwelling-house,  hij  throwing  filthy  sub- 

stances into  it.  —  Mass.  St.  1851,  ch.  129,  §  3. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord  ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  feloniously,  wilfully,  and  mali- 
ciously did  throw  into  the  dwelling-house  of  one  A.  B.  there 
situate,  a  large  quantity  of  a  certain  filthy  substance,  that  is 
to  say,  one  barrel  of  coal  tar,  with  intent  thereby  then  and 
there  feloniously,  wilfully,  and  maliciously  the  said  dwelling- 
house  unlawfully  to  injure,  deface,  and  defile ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

21.  For  attempting  to  obstruct  engines  and  carriages  j^assing 

upon  a  railroad. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  with  force  and  arms,  at  B.  in  the 

county  of  M.,  feloniously,  wilfully,  and  maliciously  contriving 


382  MALICIOUS   MISCHIEF,   ETC.  [CHAP.  XXXV. 

and  intending  the  engines  and  carriages,  of  the  property  of  the 
Boston  and  Worcester  Raiboad  Corporation,  then  and  there 
lawfully  passing  over  and  along  the  railroad  of  said  corpora- 
tion, there  located  and  situate,  to  obstruct,  with  intent  then  and 
there  the  safety  of  divers  persons  then  and  there  lawfully  riding, 
passing,  and  being  conveyed  over  and  along  said  railroad,  at 
B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  the  engines 
and  carriages  aforesaid,  to  endanger,  did,  on  the  first  day  of 

June  in  the  year  of  our  Lord ,  at  B.  aforesaid,  in  the 

county  aforesaid,  feloniously,  wilfully,  and  maliciously  place 
and  put  upon  and  across  said  railroad  there  situate,  one  iron 
rail,  whereby  the  said  engines  and  carriages  were  then  and 
there  in  great  danger  of  being  obstructed,  and  the  safety  of 
divers  persons  then  and  there  lawfully  riding,  passing,  and 
being  conveyed  in  and  upon  the  said  engines  and  carriages 
as  aforesaid,  were  then  and  there  greatly  endangered ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

22.  For  obstructing  engines,  etc. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B,  afore- 
said, in  the  county  aforesaid,  feloniously,  wilfully,  and  mali- 
ciously, the  engines  and  carriages,  of  the  property  of  the  Bos- 
ton and  Worcester  Railroad  Corporation,  then  and  there  law- 
fully passing  over  and  along  the  railroad  of  said  corporation, 
there  located  and  situate,  did  obstruct,  by  then  and  there,  state 
the  mode  of  obstruction,  and  the  safety  of  divers  persons  then 
and  there  lawfully  riding,  passing,  and  being  conveyed  over 
and  along  said  railroad,  at  B.  aforesaid,  in  the  county  afore- 
said, ill  and  u|)()n  the  engines  and  carriages  aforesaid,  tlien 
and  tlicri-  did  ciidaiiger;  against  the  peace  of  said  Cominon- 
weahli,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


CHAP.  XXXV.]  MALICIOUS   MISCHIEF,   ETC  383 


23.  For  throwing  a  stone  against  a  railroad  carriage,  ivith 

intent,  etc. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  with 

force  and  arms,  at  F.  in  the  county  of  M.,  wilfully  and  mali- 
ciously did  cast  and  throw  a  stone  into  a  certain  carriage,  of 
the  property  of  the  Boston  and  "Worcester  Railroad  Corpora- 
tion, then  and  there  lawfully  passing  over  and  along  the  rail- 
road of  said  corporation,  there  located  and  situated,  with  in- 
tent thereby  then  and  there  the  safety  of  divers  persons  then 
and  there  lawfully  riding  and  passing,  and  being  conveyed 
over  and  along  said  railroad,  at  F.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  the  carriage  aforesaid,  to  endanger ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 


CHAPTER    XXXVI. 

MAYHEM. 

Indictment  for  mayhem   by  slitting  the  nose.  —  Rev.  Sts.  of 
Mass.  ch.  125,  §  lO.i 

The  jurors,  etc.,  npon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  the  said  C.  D.  being  then  and  there 
armed  with  a  certain  dangerous  weapon,  to  wit,  a  knife,  with 
malicious  intent  the  said  J.  N.  then  and  there  to  maim  and 
disfigure,  in  and  upon  the  said  J.  N.  feloniously  did  make  an 
assault ;  and  that  the  said  C.  D.,  with  the  said  knife,  the  nose 
of  the  said  J.  N.  then  and  there  feloniously  and  maliciously 
did  cut  and  slit,  with  malicious  intent  then  and  there  and 
thereby,  in  manner  aforesaid,  the  said  J.  N.  then  and  there,  to 
maim  and  disfigure ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


^  This  is  not  a  felony,  at  common  law.     Commonwealth  v.  Newell,  7  Mas- 
sachusetts, (Rand's  ed.),  244. 


CHAPTER    XXXVII. 

NUISANCE. 

The  indictment  for  this  offence  states  the  facts  which  form 
the  subject  of  the  charge,^  alleging  it  to  be  to  the  common 
nuisance  of  all  the  citizens  of  the  State,  or  Commonwealth.^ 
But  if  the  subject  be  one  which  in  its  nature  necessarily  tends 
to  the  injury  of  all  the  citizens,  such  as  obsti'ucting  a  river 
described  as  a  public  navigable  river,  or  a  way  described  as 
a  public  highway,  or  the  lilte,  it  is  said  to  be  sufficient  with- 
out any  more  particular  allegation  of  common  nuisance.^ 

1.  Nuisance  by  deleterious  smoke  and  vaporsJ^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

and  on  divers  other  days  and  times  between  that  day  and  the 
day  of  the  finding  of  this  indictment,  at  B.  in  the  county  of 
S.  unlawfully  and  injuriously  did  erect,  and  cause  and  procure 
to  be  erected,  certain  furnaces  and  ovens  for  the  burning  of 
coke,  and  did  then  and  there  unlawfully  and  injuriously  cause 


^  Eex  V.  White,  1  Burrow,  333. 

*  The  offence  should  be  stated  to  be  a  common  nuisance  to  all  the  citizens. 
Commonwealth  v.  Faris,  5  Randolph,  691 ;  GrafBns  v.  The  Commonwealth, 
3  Pennsylvania  Rep.  502 ;  Hayward's  case,  Croke  Eliz.  148.  And  see  1 
Gabbett,  Crim.  Law,  762;  1  Hawkins,  P.  C.  eh.  33;  Regina  v.  Webb,  1 
Denison,  C.  C.  338. 

5  3  Greenleaf  on  Ev.  §  185 ;  1  Hawkins,  P.  C.  ch.  75,  §  3,  4,  5. 

*  6  Cox,  C.  C.  Appendix,  p.  Ixxvi.     See  Rex  v.  Davey,  5  Esp.  216. 

33 


386  NUISANCE.  [chap.  XXXVII. 

and  permit  great  quantities  of  smoke  and  of  sulphurous  and 
other  noxious,  unwholesome,  and  injurious  vapor  to  arise 
from  the  said  furnaces,  and  then  and  there  to  impregnate  the 
air  near  and  around  the  said  furnaces,  and  then  and  there  to 
enter  the  dwelling-houses  there  situate  near  the  said  furnaces  ; 
to  the  great  damage  and  common  nuisance  of  all  persons 
then  and  there  living  and  inhabiting  near  the  said  furnaces, 
and  of  all  other  persons  then  and  there  passing  near  the  same. 

2.  Nuisance  hy  rendering  water  unfit  to  drink} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  and 

on  divers  other  days  and  times  between  that  day  and  the  day 
of  the  finding  of  this  indictment,  at  B.  in  the  county  of  S.,  did 
unlawfully  and  injuriously  convey,  and  cause  and  suffer  to  be 
drained  and  conveyed,  great  quantities  of  noxious  and  offen- 
sive liquid  matters,  scum,  and  refuse,  produced  from  the  mak- 
ing of  gas  and  of  coal-tar  and  coke,  from  certain  premises  of 
the  said  C.  D.  there  situate,  into  a  certain  ancient  stream  of 
pure  water  there  situate  and  flowing,  and  did  thereby  then  and 
there  corrupt  and  render  unwholesome  the  water  of  the  said 
stream,  and  make  the  same  unfit  to  drink ;  to  the  great 
injury  and  common  nuisance  of  all  persons  then  and  there 
residing  near  the  said  stream,  and  of  all  other  persons  then 
and  there  using  the  water  thereof,  and  against  the  peace,  etc. 

3.  Nuisance  by  diverting  a  watercourse.  ^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

and  on  divers  other  days  and  times  between  that  day  and  the 
finding  of  tliis  indictment,  at  B.  in  the  county  of  S.,  unlaw- 
fully and  injuriously  did  divert  and  turn  out  of  its  ancient 

'  n  Cox,  C.  C.  Appendix,  l.xxvi.     Sec  Ilex  v   Medley,  G  Carrington  & 
Payne,  229. 

"  G  Cox,  C.  C.  Aj)pendix,  p.  Ixxvi. 


CHAP.  XXXVII.]  NUISANCE.  3S7 

and  accustomed  channel* and  course,  and  cause  and  procure 
to  be  diverted,  a  certain  ancient  common  watercourse  and 
common  stream  of  water  there  situate,  and  did  then  and 
there  make  and  place,  and  cause  and  procure  to  be  made  and 
placed,  a  dam  and  embankment  across  the  said  stream,  and 
did  then  and  there  and  thereby  deprive  the  inhabitants  of  said 
B.,  and  all  other  persons  using  the  said  stream  of  water  and 
watercourse,  of  the  said  water;  to  the  great  damage  and 
common  nuisance  of  the  said  inhabitants,  and  other  persons, 
and  against  the  peace,  etc. 


4.    Against  a  parent  for  not  giving  his  deceased  child  a 
Christian  burial} 

The  jurors,  etc.,  upon  their  oath  present,  that  whereas  here- 
tofore, to  wit,  on  the  eighteenth  day  of  August  in  the  year  of 

our  Lord  ,  William  Vann  late  of  the  parish  of  Saint 

Margaret  in  the  borough  of  Leicester,  laborer,  was  the  father 
of  a  certain  child  then  lately  deceased,  and  had  then  and 
there  the  care  and  custody  of  the  dead  body  thereof.  And 
whereas  on  the  day  and  year  aforesaid,  at  the  parish  afore- 
said in  the  borough  aforesaid,  it  became  and  was  the  duty  of 
the  said  William  Vann  the  father  of  the  said  child  lately 
deceased  as  aforesaid,  the  dead  body  thereof  to  bury. and  inter 
according  to  the  rules  of  public  decency,  the  said  W.  V.  then 
and  there  having  ample  and  sufficient  money  and  means  to 
defray  the  necessary  expenses  of  said  burial  and  interment. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  William  Vann  having  as  aforesaid  the 
care  and  custody  of  the  dead  body  of  his  child  then  lately 
deceased,  afterwards,  to  wit,  on  the  nineteenth  day  of  August 
and  at  divers  other  times  in  the  year  aforesaid,  at  the  parish 


^  A  man  is  bound  to  give  Christian  burial  to  his  deceased  oliild,  if  he  has 
the  means  of  doing  so  ;  but  he  is  not  liable  to  be  indicted  for  a  nuisance,  if 
he  has  not  the  means  of  providing  burial  for  it.  Regina  v.  Vann,  2  Denlson, 
C.  C.  325;  5  Cox,  C.  C.  379  ;  8  Eng.  Law  and  Eq.  Rep.  5G9.  And  see 
Ambrose  v.  Keri-ison,  4  Eng.  Law  and  Eq.  Rep.  361. 


388  NUISANCE.  [chap.  XXXVII. 

aforesaid,  in  the  borough  aforesaicl,  with  force  and  arms, 
against  his  duty  in  that  respect  the  said  dead  body  did  un- 
lawfully, wrongfully,  and  wilfully  refuse,  omit,  and  neglect  to 
bury  and  inter,  whereby  and  by  reason  of  the  decomposition 
of  the  said  dead  body  while  in  his  care  and  custody  as  afore- 
said, and  while  remaining  unburied  in  the  dwelling-house  of 
the  said  William  Vann  there  situate  and  being,  divers,  various, 
and  noxious  and  unwholesome  smells  and  stenches  did  then 
and  there  arise  and  issue  therefrom,  and  thereby  the  air  was 
greatly  infected  and  corrupted,  and  was^rendered  and  became 
for  several  days  offensive,  unwholesome,  injurious,  and  dan- 
gerous to  health  ;  to  the  great  damage  and  common  nuisance 
of  all  the  citizens  of  said  State,  there  inhabiting,  being,  and 
residing,  and  going,  returning,  and  passing,  to  evil  example  of 
all  others  in  like  case  offending,  against  the  peace,  etc. 

Second  Count. —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  William  Vann  late  of  the 
parish  of  Saint  Margaret  in  the  borough  of  Leicester,  laborer, 
on  the  twentieth  day  of  August  in  the  year  of  our  Lord 
,  having  the  care  and  custody  of  the  dead  body  of  a  cer- 
tain child  then  lately  deceased,  to  wit,  of  the  child  of  the 
said  William  Vann,  on  the  day  and  year  last  mentioned,  at 
the  parish  aforesaid,  in  the  borough  aforesaid,  the  said  dead 
body,  with  force  and  arms,  and  against  his  duty  in  that 
respect,  unlawfully  did  refuse,  omit,  and  neglect  to  bury,  the 
said  W.  V.  then  and  there  having  sufficient  money  and  means 
to  defray  the  necessary  expenses  of  the  burial  and  interment 
of  said  body,  and  the  said  dead  body  did  then  and  there 
remove  from  the  dwelling-house  of  the  said  William  Vann 
there  situate,  to  a  certain  public  place,  to  wit,  a  public  yard 
there  situate,  near  to  and  adjoining  divers  public  streets  being 
the  common  highways,  and  also  near  to  and  adjoining  the 
dwelling-houses  of  divers  citizens  of  said  State,  there  situate, 
and  the  said  body  so  removed  as  aforesaid  and  so  as  afore- 
said in  his  care  and  custody,  did  then  and  there  unlawfully 
and  injuriously  permit  and  cause  to  be  and  remain  in  the  said 
public  yard  there  situajc  as  aforesaid,  for  a  long  spacu;  of  time, 
to  wil,  for  and  during  tli(!  space  of  six  days,  whereby  and  by 


CHAP.  XXXVII.]  NUISANCE.  389 

reason  of  the  noxious  smells,  stenches,  and  vapors  arising 
and  issuing  from  the  said  dead  body  during  the  time  afore- 
said, the  air  became  and  was  greatly  infected  and  corrupted, 
and  became  and  was  rendered  offensive,  injurious,  and  un- 
wholesome ;  to  the  great  damage  and  common  nuisance  not 
only  of  all  the  citizens  of  said  State,  then  and  there  being, 
inhabiting,  and  dwelling,  but  also  of  all  other  citizens  of  said 
State,  near  there  being,  inhabiting,  and  dwelling,  but  also  of 
all  other  citizens  of  said  State,  in,  by,  and  through  the  said 
public  yard,  and  in,  by,  and  through  the  other  said  public 
streets  and  highways  near  thereto  going,  returning,  passing, 
repassing,  and  laboring,  to  the  evil  example  of  others  in  like 
case  offending,  and  against  the  peace,  etc. 

Third  Count  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  William  Vann,  late  of  the 
parish  of  Saint  Margaret,  in  the  borough  of  Leicester, 
laborer,  on  the  day  and  year  last  before  mentioned,  having 
the  care  and  custody  of  the  dead  body  of  a  certain  child  then 
lately  deceased,  to  wit,  the  child  of  the  said  William  Vann, 
at  the  parish  aforesaid,  in  the  borough  aforesaid,  the  said  dead 
body,  with  force  and  arms,  did  unlawfully,  wilfully,  and 
against  his  duty  in  that  respect,  omit,  neglect,  and  refuse  to 
bury  the  said  dead  body,  unlawfully,  injuriously,  and  against 
the  rules  of  public  decency  in  that  respect  in  a  certain  public 
place,  to  wit,  a  public  yard,  there  being  and  situate,  and  near 
unto  divers  public  streets,  being  the  common  highways,  and 
also  near  unto  the  dwelling-houses  of  divers  citizens  of  said 
State,  there  situate  and  being,  did  then  and  there  keep  and 
retain,  and  cause  to  be  kept  and  retained,  for  the  space  of 
several  days,  and  the  said  dead  body  so  kept  and  retained  by 
the  said  William  Vann  as  aforesaid,  became  and  was  putrid, 
by  reason  of  which  said  premises  and  during  the  time  aforesaid, 
divers  noxious,  unwholesome,  and  offensive  smells,  stenches, 
and  vapors,  were  from  thence  emitted  and  issued,  so  that 
thereby  the  air  then  and  there  was  rendered  and  became 
offensive,  injurious,  and  unwholesome,  and  thereby  continued 
during  the  time  aforesaid  to  be  offensive,  injurious,  and  un- 
wholesome ;  to  the  great  damage  and  common  nuisance  of 


390  NUISANCE.  [chap.  XXXVII. 

all  the  citizens  of  said  State,  there  inhabiting,  being,  and 
residing  and  going,  returning  and  passing  through  the  said 
streets  and  highways,  and  against  the  peace,  etc. 


5.  For  bringing  a  horse  infected  with  the  glanders  into  a  pub- 
lic place} 

First  Count.  —  The  jurors,  etc.,  present,  that  James  Hen- 
son,  late  of  Melton  Mowbray,  in  the  county  of  Leicester, 

laborer,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  Melton  Mowbray  aforesaid,  in  the  county  aforesaid,  was 
possessed  of  a  certain  mare,  which  said  mare  was  then  and 
there  infected  with  a  contagious,  infectious,  and  dangerous 
disease  called  the  glanders,  which  disease  was  then  and  there 
communicable  to  man,  as  the  said  J.  H.  then  and  there  knew, 
and  the  said  James  Henson  well  knowing  the  premises  after- 
wards, and  whilst  the  said  mare  was  so  infected  as  aforesaid, 
on  the  day  and  year  aforesaid,  with  force  and  arms  at  Melton 
]\Iowbray  aforesaid,  in  the  county  aforesaid,  unlawfully,  wil- 
fully, wickedly,  and  injm-iously  did  bring  and  cause  to  be 
brought,  the  said  mare  so  infected  as  aforesaid,  into  and  along 
a  certain  open  public  way  and  place,  on  which  then  of  right, 
were  divers  citizens  of  said  State,  then  going,  passing,  and 
staying,  and  amidst  and  among  divers  citizens  of  said  State, 
who  were  then  and  there  in  the  said  public  way  and  place,  to 
the  great  danger  of  infecting  with  the  said  contagious,  infec- 
tious, and  dangerous  disease  called  the  glanders,  the  citizens 
of  said  State,  who  on  the  said  day  and  time,  were  in  and 
near  the  said  public  way  and  place,  to  the  damage  and  com- 
mon nuisance  of  all  the  said  citizens  of  said  State  ;  to  the  evil 
example  of  all  others  in  the  like  case  oflending,  and  against 
the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  u})on  their  oath 

*  An  indictment  •wliioh  alleged  that  the  defendant  knew  tliat  a  marc 
■which  he  brought  into  a  fair,  was  glandercd,  was,  after  verdict,  held  good, 
without  an  av(!rnient  that  the  glanders  was  a  disease  communicable  to  man. 
llegiua  V.  Ilciibun,  i'carce,  C.  C.  2\  ;  18  Eng.  Law  and  E(i.  Hep.  1U7. 


CHAP,  xxxvil]  nuisance.  391 

aforesaid,  do  further  present,  that  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  Melton  Mowbray  aforesaid,  in  the 
county  aforesaid,  the  said  James  Henson  was  possessed  of  a 
certain  other  mare,  which  said  last-mentioned  mare  was  then 
and  there  infected  with  a  contagious,  infectious,  and  danger- 
ous disease,  to  wit,  a  disease  called  the  glanders,  which 
disease  was  then  and  there  communicable  to  man,  as  the  said 
J.  H.  then  and  there  well  knew,  and  that  the  said  James 
Henson,  w^ell  knowing  the  premises  last  aforesaid,  and  whilst 
the  said  last-mentioned  mare  was  so  infected  as  aforesaid,  on 
the  day  and  year  aforesaid,  with  force  and  arms  at  Melton 
Mowbray  aforesaid,  in  the  county  aforesaid,  unlawfully, 
wickedly,  and  injuriously,  did  bring  and  cause  to  be  brought, 
the  said  last-mentioned  mare  so  infected,  as  aforesaid,  into  a 
certain  fair  called  the  Melton  Mowbray  Whitsun  Fair,  during 
the  period  when  the  citizens  of  said  State  were  then  and 
there  holding  the  said  fair,  which  was  then  and  there  public 
and  open  to  all  the  citizens  of  said  State,  for  the  purpose  of 
buying  and  selling  horses,  and  other  cattle  therein,  and  that 
the  said  James  Henson  well  knowing  the  premises,  as  last 
aforesaid,  then  and  there  kept,  and  continued  to  keep  the  said 
mare  so  infected,  as  aforesaid,  for  a  long  space  of  time,  to 
wit,  for  the  space  of  one  hour,  then  next  following,  and  in 
which  said  fair  then,  of  right,  were  divers  horses  and  other 
cattle  of  certain  citizens  of  said  State,  then  and  there  pass- 
ing and  being,  by  means  of  which  said  several  last-mentioned 
premises,  the  said  last-mentioned  horses  and  other  cattle  so 
passing,  and  being  along  and  in  the  said  fair,  became  and 
were  liable  to  be  infected  by  the  contagious,  infectious,  and 
dangerous  disease  with  which  the  said  mare  of  the  said 
James  Henson  was  so  infected,  as  aforesaid ;  to  the  damage 
and  common  nuisance  of  the  citizens  of  said  State,  frequent- 
ing the  said  fair,  and  using  the  same  for  the  purpose  of  buy- 
ing and  selling  horses,  and  other  cattle  therein,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against 
the  peace,  etc. 

Third  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  afterwards,  to  wit,  on  the 


392  NUISANCE.  [chap.  XXXVII. 

day  and  year  aforesaid,  at  JNIelton  Mowbray  aforesaid,  in  the 
county  aforesaid,  the  said  James  Henson  was  possessed  of  a 
certain  other  mare,  which  last-mentioned  mare  was  then  and 
there  infected  with  a  contagious,  infectious,  and  dangerous 
disease,  to  wit,  a  disease  called  the  glanders,  which  disease 
was  then  and  there  communicable  to  man,  as  the  said  J.  H. 
then  and  there  well  knew,  and  that  the  said  James  Henson, 
well  knowing  the  last-mentioned  premises,  afterwards  and 
whilst  the  said  last-mentioned  mare  was  so  infected  as  afore- 
said, on  the  day  and  year  aforesaid,  with  force  and  arms  at 
Melton  Mowbray  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully and  injuriously  did  bring  and  cause  to  be  brought,  the 
said  last-mentioned  mare  so  infected  as  aforesaid,  into  a  cer- 
tain open  and  public  way  and  place,  called  the  Burton  End, 
in  Melton  Mowbray  aforesaid,  in  which  public  way  and  place 
there  were  divers  other  horses  and  other  cattle  of  certain  citi- 
zens of  said  State,  then  and  there  passing  and  being,  and 
that  the  said  James  Henson,  well  knowing  the  premises 
aforesaid,  then  and  there  kept  and  continued  the  said  mare  of 
which  the  said  James  Henson  was  so  possessed,  as  last  afore- 
said, and  which  was  then  and  there  so  infected  as  aforesaid, 
for  a  long  space  of  time,  to  wit,  for  the  space  of  one  hour 
then  next  following,  during  all  which  time,  there  were  divers 
other  horses  and  other  cattle  of  certain  citizens  of  said  State, 
then  and  there  passing  and  being,  by  means  of  which  said 
several  last-mentioned  premises,  the  said  horses  and  other 
cattle  so  passing  and  being  along  and  in  the  said  open  and 
public  way  and  place,  became  and  were  liable  to  be  infected 
by  the  contagious,  infectious,  and  dangerous  disease,  with 
which  the  said  mare  of  the  said  James  Henson,  was  so  in- 
fected as  aforesaid  ;  to  the  damage  and  common  nuisance  of 
the  citizens  of  said  State,  then  having  horses  and  other  cattle 
in  the  said  open  and  public  way  and  place,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  and  against 
the  peace,  etc. 


CHAP.  XXXVII.]  NUISANCE.  '393 

6.  Nuisance  for  carrying  on  a  trade  offensive  to  the  smell.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

and  on  divers  other  days  and  times  between  that  day  and  the 
finding  of  this  indictment,  at  B.  in  the  county  of  S.,  unlaw- 
fully and  injuriously  did  kill,  and  cause  to  be  killed,  divers 
large  numbers  of  horses,  near  to  the  dwelling-houses  of  divers 
persons  then  and  there  inhabiting  the  same  houses,  and  also 
near  to  a  certain  public  road  and  highway  there ;  and  then 
and  on  the  said  other  days  and  times,  at  B.  aforesaid,  in  the 
county  aforesaid,  unlawfully  and  injuriously  did  cause  and 
permit  the  skins,  flesh,  bones,  blood,  entrails,  excrements,  and 
other  filth  of  and  from  the  said  horses  so  killed  as  aforesaid, 
to  lie  and  remain  near  to  the  said  dwelling-houses  and  near 
to  the  said  public  road  and  highway  for  a  long  space  of  time, 
to  wit,  for  the  space  of  one  week,  whereby  divers  noisome 
and  unwholesome  smells  did  then  and  there  arise  from  the 
said  skins,  flesh,  bones,  blood,  entrails,  excrements,  and  other 
filth,  so  that  the  air  was  then  and  there  greatly  corrupted  and 
infected  thereby ;  to  the  great  damage  and  common  nuisance 
of  the  inhabitants  of  the  said  houses,  and  of  all  other  persons 
then  and  there  passing  upon  and  along  the  said  public  road 
and  highway. 

7.  Against  a  town  for  not  repairing  a  highway. 

The  jurors,  etc.,  upon   their  oath   present,   that   on   the 

first  day  of  June  in  the  year  of  our  Lord ,  there  was 

and  yet  is  a  common  public  highway  leading  from  the  town 
of  B.  in  said  county,  to  C.  in  said  county ,2  used  by  and  for 


'  6  Cox,  C.  C.  Appendix,  p.  Ixxvii. 

2  It  is  unnecessary  to  describe  the  termini  of  the  way.  Rex  v.  St.  Wconards, 
6  Carrington  &  Payne,  582  ;  Rex  v.  Haddock,  Andrews,  145  ;  Common- 
wealth V.  Hall,  15  Massachusetts,  (Rand's  ed.),  239;  Commonwealth  v. 
Allen,  1 1  Metcalf,  403,  405.     If  the  way  be  described  as  leading  from  A. 


394  NUISANCE.  [chap.  XXXVII. 

all  the  citizens  of  said  Commonwealth,  with  their  horses, 
coaches,  carts,  and  other  carriages,  to  go,  return,  pass,  re- 
pass, ride,  and  labor,  at  their  freewill  and  pleasure.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  a  certain  part  of  the  said  common  public 
highway,  situated  at  D.  in  the  county  aforesaid,  extend- 
ing from  a  certain  field  there,  called  ,  unto  a  certain 

bridge  there,  called  bridge,  containing  in  length  forty 

yards,  and  in  breadth  eight  yards,i  on  the  first  day  of 
June  in  the  year  of  our  Lord  ,  and  continually  after- 
wards until  the  day  of  the  taking  of  this  inquisition,  at  D. 
aforesaid,  in  the  county  aforesaid,  was  and  is  yet  very  ruin- 
ous, miry,  deep,  broken,  and  in  great  decay,  for  want  of  due 
reparation  and  amendment  of  the  same,  so  that  the  citizens 
of  said  Commonwealth,  during  the  time  aforesaid,  could  not 
go,  return,  pass,  repass,  ride,  and  labor  with  their  horses, 
coaches,  carts,  and  other  carriages,  in,  through,  and  along  the 
common  public  highway  aforesaid,  as  they  ought  and  were 
wont  and  accustomed  to  do,  without  great  danger  of  their 
lives,  and  the  loss  of  their  goods.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  inhabi- 
tants of  the  said  town  of  D.  in  the  county  aforesaid,  during  all 
the  time  aforesaid,  in  their  corporate  capacity,  the  said  com- 
mon highway  ought  to  have  kept  in  repair  and  amended 
when  and  so  often  as  it  should  be  necessary,  but  have  neg- 
lected, and  still  neglect  so  to  do ;  to  the  great  damage  and 


mi!o  B.,  the  termini  A.  and  B.  are  excluded.  Regina  v.  Botfield,  Carrington 
&  IVIarshman,  157 ;  Rex  v.  Gamlingay,  1  Leach,  C.  C.  (4th  London  ed.), 
628;  3  Term  R.  513;  Hammond  v.  Brewer,  1  Burrow,  376.  See  Regina  v. 
Turweston,  1  Eng.  Law  and  Etj.  Rep.  317  ;  4  Cox,  C.  C.  349  ;  Rex  v.  Mar- 
chioness of  Devonshire,  4  Adolphus  &  Ellis,  234  ;  5  Neville  &  Manning, 
CC2  ;  Regina  v.  Steventon,  1  Carrington  &  Kirwan,  55  ;  Rex  v.  Upton,  6 
Carrington  &  Payne,  133. 

*  The  indictment  must  show  with  certainty  the  part  of  the  road  which  is 
out  of  repair,  and  the  number  of  yards,  or  rods,  in  length,  and  in  breadth. 
1  Hawkins,  P.  C.  ch.  7(i,  §  88,  8;)  ;  1  Sfarkic,  Crim.  PI.  (London  cd.  1828), 
l')i  ;  and  that  it  is  within  the  town,  bound  to  repair  it.  Rex  v.  Upton,  G  Car- 
rington &  Payne,  133. 


CHAP.  XXXVII.]  NUISANCE.  395 

common  nuisance  of  all  the  citizens  of  said  Commonwealth, 
then  and  there  going,  returning,  passing,  repassing,  riding, 
and  laboring,  in,  through,  and  along  the  common  pubUc  high- 
way aforesaid,  and  against  the  peace,  etc. 


8.  For  keeping  a  disorderly  housed 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 
said, and  on  divers  other  days  and  times  between  that  day 
and  the  day  of  the  finding  of  this  indictment,^  at  B.  aforesaid, 
in  the  county  aforesaid,  a  certain  common,  ill-governed,  and 
disorderly  house  unlawfully^  did  keep  and  maintain,  and  in 
the  said  house,  for  his  own  lucre  and  gain,*  certain  evil-dis- 
posed persons,  as  well  men  as  women  of  evil  name,  fame,  and 
conversation,  to  come  together  on  the  days  and  times  afore- 
said, then  unlawfully  3  did  cause  and  procure,  and  the  said 
persons  in  the  said  house  at  unlawful  times,  as  well  in  the 
night  as  in  the  day,  on  the  days  and  times  aforesaid,  there  to 
be  and  remain,  drinking,  tippling,  cursing,  swearing,  quarrel- 
ling, and  otherwise  misbehaving  themselves,  then  and  there 
unlawfully  and  knowingly  did  permit  and  suffer ;  to  the  great 
injury  and  common  nuisance  of  all  the  citizens  of  said  Com- 
monwealth, then  and  there  being,  residing,  passing,  and 
repassing,  and  against  the  peace,  etc. 

*  See  Rex  v.  Higginson,  2  Burrow,  1233;  The  State  v.  Bailey,  1  Foster, 
(N.  H.),  343. 

^  This  is  a  sufficient  allegation  of  the  time  at  -which  the  offence  was  com- 
mitted.   The  State  v.  Bailey,  1  Foster,  (N.  H.),  343. 

'This  is  sufficient,  without  saying  "knowingly"  or  "corruptly."  The 
State  V.  Bailey,  1  Foster,  (N.  H.),  343. 

*  This  allegation  is  unnecessary.  The  State  v.  Bailey,  1  Foster,  (N.  tl.) 
343. 


396  NUISANCE.  [chap.  XXXVII. 


9.  For  carrying  on  an  offensive  trade} 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

the  parish  of  B.  in  the  county  of  M.,  near  unto  divers  public 
streets  being  the  common  highways,  and  also  near  unto  the 
dwelling-houses  of  divers  citizens  of  said  State,  there  situate 
and  being,  unlawfully  and  injuriously  did  make,  erect,  and  set 
up,  and  did  cause  and  procure  to  be  made,  erected,  and  set 
up,  a  certain  furnace  and  boiler,  for  the  purpose  of  boiling 
tripe  and  other  entrails  and  offal  of  beasts :  and  that  the  said 
J.  S.,  on  the  day  and  year  aforesaid,  and  on  divers  other 
days  *  and  times  between  that  day  and  the  day  of  the  taking 
of  this  inquisition,  at  the  parish  aforesaid,  in  the  county  afore- 
said, unlawfully  and  injuriously  did  boil,  and  cause  and  pro- 
cure to  be  boiled,  in  the  said  boiler,  divers  large  quantities  of 
tripe  and  other  entrails  and  offal  of  beasts ;  by  reason  of 
which  said  premises,  divers  noisome,  offensive,  and  unwhole- 
some smokes,  smells,  and  stenches,  during  the  time  aforesaid, 
were  from  thence  emitted  and  issued,  so  that  the  air  then  and 
there  was  and  yet  is  greatly  filled  and  impregnated  with  the 
said  smokes,  smells,  and  stenches,  and  was  and  is  rendered 
and  become  and  was  and  is  corrupted,  offensive,  uncomfort- 
able, and  unwholesome ;  to  the  great  damage  and  common 
nuisance  of  all  the  citizens  of  said  State  there  inhabiting, 
being,  and  residing,  and  going,  returning,  and  passing  through 
the  said  streets  and  highways ;  and  against  the  peace,  etc. 

Second  Count  for  continuing  the  nuisance.  —  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  J.  S.,  on  the  said  first  day  of  June  in  the  year  afore- 
said, and  from  that  day  until  the  day  of  the  taking  of  this 
inquisition,  at  the  parish  aforesaid,  in  the  county  aforesaid,  a 
certain  other  furnace  and  boiler,  for  the  purpose  of  boiling 
tripe  and  other  entrails  and  offal  of  beasts,  before  that  time 
made,  erected,  and  set  up  by  certain  persons  to  the  jurors 

'  ArcliboM,  Criin.  PI.  (London  eil.  1853),  715. 


CHAP.  XXXVII.]  NUISANCE.  397 

aforesaid  unknown,  unlawfully  and  injuriously  did  continue 
and  yet  doth  continue ;  and  that  the  said  J.  S.,  on  the  said 
first  day  of  June  in  the  year  aforesaid,  and  on  divers  other 
days,  etc.,  as  in  the  2)receding-  count,  fro7u  the  asterisk  to  the 
end. 


10.  For  keeping-  a  bawdy-house.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of, 
and  A.  his  wife,  on  the  first  day  of  June  in  the  year  of  our 

Lord  ,  and  on  divers  other  days  and  times  between  that 

day  and  the  day  of  the  taking  of  this  inquisition,  at  the  parish 
of  B.  in  the  county  of  M.,  unlawfully  did  keep  and  maintain 
a  certain  common,  ill-governed,  and  disorderly  house  ;  and  in 
the  said  house,  for  the  lucre  and  gain  of  the  said  J.  S.,  certain 
persons,  as  well  men  as  women,  of  evil  name  and  fame,  and 
of  dishonest  conversation,  then  and  on  the  said  other  days 
and  times,  there  unlawfully  and  willingly  did  cause  and  pro- 
cure to  frequent  and  come  together ;  and  the  said  men  and 
women,  in  the  said  house  of  the  said  J.  S.,  at  unlawful  times 
as  well  in  the  night  as  in  the  day,  then  and  on  the  said  other 
days  and  times,  there  to  be  and  remain  drinking,  tippling, 
whoring,  and  misbehaving  themselves,  unlawfully  and  wil- 
fully did  permit,  and  yet  do  permit ;  to  the  great  damage  and 
common  nuisance  of  all  the  citizens  of  said  State  there  inhab- 
iting, being,  residing,  and  passing ;  to  the  evil  example  of  all 
others  in  the  like  case  offending,  and  against  the  peace,  etc. 

11.  For  keeping  a  common  gaming-house."^ 

Commencement  as  in  the  last  precedent,  at  the  parish  of  B. 
in  the  county  of  M.,  unlawfully  did  keep  and  maintain  a  cer- 
tain common  gaming-house ;  and  in  the  said  common  gam- 
ing-house, for  lucre  and  gain,  on  the  said  first  day  of  June  in 

»  Archbold,  Crim.  PL  (London  ed.  1853),  718. 

*  Archbold,  Crim.  PI.  (London  ed.  1853),  719.     This  count  was  held  good 
in  Rex  r.  Rogier,  2  Dowling  &  Ryland,  43  ;  1  Barnewall  &  Cresswell,  272. 

34 


398  NUISANCE.  [chap,  xxxvn. 

the  year  aforesaid,  and  on  the  said  other  days  and  times, 
there  unlawfully  and  wilfully  did  cause  and  procure  divers 
idle  and  evil-disposed  persons  to  frequent  and  come,  to  play 
together  at  a  certain  unlawful  game  of  cards  called  Rovge  et 
noir  ;  and  in  the  said  common  gaming-house,  on  the  said  first 
day  of  June  in  the  year  aforesaid,  and  on  the  said  other  days 
and  times,  there  unlawfully  and  wilfully  did  permit  and  suffer 
the  said  idle  and  evil-disposed  persons  to  be  and  remain, 
playing  and  gaming  at  the  same  unlawful  game  called  Rovge 
et  noir,  for  divers  large  and  excessive  sums  of  money;  to  the 
great  damage  and  common  nuisance  of  all  the  citizens  of 
said  State,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against  the  peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  J.  S.  afterwards, 
to  wit,  on  the  said  first  day  of  June  in  the  year  aforesaid,  and 
on  divers  other  days  and  times  between  that  day  and  the 
day  of  the  taking  of  this  inquisition,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  unlawfully  did  keep  and  maintain  a 
certain  common  gaming-room  in  the  house  of  one  J.  N.  there 
situate;  and  in  the  said  common  gaming-room,  etc.,  etc., 
as  in  the  last  count,  only  substituting'  "  gaming-room "  for 
"  gaming-house." 


CHAPTER    XXXVIII. 

OFFENCES  AGAINST  THE  PUBLIC  HEALTH. 

1.  For  selling  unwholesome  meat.  —  Rev.  Sts.   of  Mass.  eh. 

171,  §  11. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late 

of.  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  in  the  county  of  S.,  knowingly,  wilfully,  and  maliciously 
did  sell  to  one  C.  D.,  a  certain  quantity  of  diseased,  corrupted, 
and  unwholesome  provisions,  to  wit,  ten  pounds  of  diseased, 
corrupted,  and  unwholesome  beef,  to  be  then  and  there  used 
and  eaten,  by  the  said  C.  D.,  for  meat,  the  said  A.  B.,  not  then 
and  there  making  fully  known  to  the  said  C.  D.,  that  the  said 
beef  was  then  and  there  diseased,  corrupted,  and  unwhole- 
some, and  the  said  A.  B.,  then  and  there  well  knowing  the 
said  beef  to  be  diseased,  corrupted,  and  unwholesome  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided. 

2.  For  adulterating  bread  for    the  purpose  of  sale.  —  Rev. 

Sts.  of  Mass.  ch.  31,  §  12. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

B.,  in  the  county  of  S.,  unlawfully  and  fraudulently  did  adul- 
terate a  certain  substance  intended  for  food,  to  wit,  fifty 
loaves  of  bread,  with  a  certain  substance  injurious  to  health, 
to  wit,  with  a  certain  substance  called  alum,  with  the  intent, 
and  for  the  purpose,  then  and  there,  of  selling  the  same ; 
against  the  peace  of  said  Commonwealth,  and  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 


400  OFFENCES  AGAINST  THE  PUBLIC  HEALTH.    [CHAP.  XXXVIII. 


3.  For  selling'  adulterated  medicine.  —  Mass.  Sts.  1853,  ch. 

394,  §  1. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at 

B.,  in  the  county  of  S.,  knowingly  and  unlawfully  did  sell  to 
one  C.  D.,  a  certain  quantity  of  a  fraudulently  adulterated 
drug,  to  wit,  one  pound  of  opium,  the  said  A.  B.  then  ^nd 
there  well  knowing  the  same  to  be  adulterated;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

4.  For  selling  a  diseased  cow  in  a  public  markets 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  L.  P.  late 
of  London,  laborer,  on  the  first  day  of  April  in  the  year  of 

our  Lord ,  at  London,  that  is  to  say,  at  the  parish  of 

Saint  Sepulchre,  in  the  ward  of  Farringdon  Without,  in 
London  aforesaid,  was  possessed  of  a  certain  cow,  which  said 
cow  was  then  and  there  infected  with  a  contagious,  infectious, 
and  dangerous  disease ;  and  that  the  said  J.  L.  P.  well  know- 
ing the  premises,  afterwards,  and  whilst  the  said  cow  of  the 
said  J.  L.  P.  was  so  infected  as  aforesaid,  on  the  day  and  year 
aforesaid,  with  force  and  arms  at  the  parish  and  in  the  ward 
aforesaid,  in  London  aforesaid,  unlawfully,  wickedly,  wilfully, 
maliciously,  and  injuriously,  did  drive  and  bring,  and  cause 
and  procure  to  be  driven  and  brought,  the  said  cow  so  in- 
fected as  aforesaid,  through  and  along  divers  public  streets 
and  ways  where  certain  other  cattle  of  the  citizens  of  said 
Commonwealth  were  then  passing  unto  and  into  a  certain 
market  called  Smithfield  Market,  situate  and  being  in  the 
city  of  Loudon  aforesaid,  during  the  period  that  the  citizens 
of  said  Commonwealth  were  then  and  there  holding  the  said 
mark(;t,  which  was  then  and  tiu-re  jiublic  and  open  to  all  the 

*  4  Cox,  C.  C.  Ai)pcndix,  p.  xiv. 


CHAP.  XXXVIIL]     offences  AGAINST  THE  PUBLIC  HEALTH.  401 

citizens  of  said  Commonwealth,  for  the  purpose  of  buying 
and  selling  their  cattle  therein,  and  that  the  said  J.  L.  P.  well 
knowing  the  premises  as  aforesaid,  kept  and  continued  the 
said  cow  so  infected  as  aforesaid,  in  the  said  market  during 
the  period  of  the  holding  the  same  as  aforesaid,  for  a  long 
space  of  time,  to  wit,  for  the  space  of  twelve  hours  then  next 
following ;  and  in  which  said  market,  during  the  whole  of  the 
said  last-mentioned  period,  there  were  and  of  right  ought  to 
have  been  divers  other  cows  and  cattle  of  certain  citizens  of 
said  Commonwealth,  then  and  there  passing  and  being,  by- 
means  of  which  said  several  premises,  the  said  last-men- 
tioned cows  and  cattle  so  passing  and  being  along  and  in  the 
said  market,  became  and  were  liable  to  be  infected  by  the 
contagious,  infectious,  and  dangerous  disease  with  which 
the  said  cow  of  the  said  J.  L.  P.  was  infected  as  aforesaid,  to 
the  damage,  etc.,  to  the  evil  example,  etc.,  and  against  the 
peace,  etc. 

Second  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  and  in  the  ward  afore- 
said, in  London  aforesaid,  there  was,  and  from  time  imme- 
morial hath  been,  and  still  is,  a  certain  public  market,  called 
Smithfield  Market,  where  butchers  and  other  citizens  of  said 
Commonwealth  assemble  and  meet  together  for  the  purpose 
of  buying  cattle,  to  be  subsequently  slaughtered  by  them  for 
the  food  of  certain  others  of  the  citizens  of  said  Common- 
wealth, and  that  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  at  the  parish  and  in  the  ward  aforesaid,  in  London 
aforesaid,  the  said  J.  L.  P.  was  possessed  of  one  other  cow, 
then  and  there  infected  with  a  contagious,  infectious,  and 
dangerous  disease ;  and  that  the  said  J.  L.  P.  well  knowing 
the  said  last-mentioned  premises,  afterwards,  and  whilst  the 
said  last-mentioned  cow  of  the  said  J.  L.  P.  was  so  infected 
as  aforesaid,  on  the  day  and  year  aforesaid,  with  force  and 
arms,  at  the  parish  and  in  the  ward  aforesaid,  in  London 
aforesaid,  unlawfully,  wickedly,  wilfully,  maliciously,  and  in- 
juriously, did  drive  and  bring,  and  cause  and  procure  to  be 
driven  and  brought,  the  said  last-mentioned  cow,  so  infected 

34* 


402  OFFEXCES  AGAINST  THE  PUBLIC  HEALTH.    [CHAP.  XXXVIII. 

as  aforesaid,  unto  and  into  the  said  last-mentioned  market 
with  the  intention  of  selling  and  disposing  of  the  same  to 
the  said  butchers  and  others ;  and  that  the  same  might  be 
bought  and  subsequently  slaughtered  for  the  food  of  certain 
citizens  of  said  Commonwealth,  and  that  the  said  J.  L.  P.  did 
then  and  there  unlawfully,  wickedly,  wilfully,  maliciously,  and 
injuriously,  and  for  his  own  lucre  and  gain  expose  to  sale, 
and  cause  and  procure  to  be  exposed  to  sale,  the  said  last- 
mentioned  cow  so  infected  as  aforesaid,  in  the  said  public 
market,  with  the  intention  and  for  the  purpose  aforesaid,  the 
said  J.  L.  P.  then  and  there  well  knowing  that  the  said  cow, 
so  brought  into  the  said  public  market  and  exposed  to  sale  as 
aforesaid,  would,  if  slaughtered,  be  unfit  and  unwholesome 
for  food,  and  greatly  prejudicial  to  the  health  of  the  citizens 
of  said  Commonwealth,  eating  and  consuming  the  same; 
to  the  damage,  etc.,  to  the  evil  example,  etc.,  and  against  the 
peace,  etc. 

Third  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  and  in  the  ward  afore- 
said, in  London  aforesaid,  there  was,  and  from  time  imme- 
morial hath  been,  and  still  is,  a  certain  public  and  open  mar- 
ket, called  Smithfield  Market,  where  butchers  and  other 
citizens  of  said  Commonwealth  have  been  used  and  accus- 
tomed to  assemble  and  meet  together,  and  where  divers  and 
very  many  butchers  and  other  citizens  of  said  Commonwealth, 
were  then  assembled  and  met  together;  for  the  purpose  of 
buying  cattle,  to  be  subsequently  slaughtered  by  them  for 
human  food,  to  wit,  for  the  food  of  certain  others  of  the  citi- 
zens of  said  Commonwealth,  and  that  afterwards,  to  wit,  on 
the  day  and  year  aforesaid,  in  the  said  public  and  open  mar- 
ket, at  the  parish  and  in  the  ward  aforesaid,  in  London  afore- 
said, the  said  J.  L.  P.  was  possessed  of  one  other  cow,  which 
was  then  and  there  infected  with  a  loathsome,  deadly,  and 
dangerous  disease,  and  which  said  last-mentioned  cow,  he 
th(!  said  J.  L.  P.  then  and  there  well  knew  would,  if  slaugh- 
tered, l)c  imlit  and  unwholesome  for  human  food,  and  greatly 
])r('judi(;iul  to  Ifie  licalth  of  any  of  the  citizens  of  said  Com- 


CHAP.  XXXVIII.]     OFFENCES  AGAINST  THE  PUBLIC  HEALTH.  403 

monwealth,  who  might  eat  and  consume  the  same ;  and  he 
the  said  J.  L.  P.  well  knowing  the  said  last-mentioned  premi- 
ses, afterwards,  and  whilst  the  said  last-mentioned  cow  of  the 
said  J.  L.  P.  was  so  infected  with  the  said  disease  as  afore- 
said, on  the  day  and  year  aforesaid,  with  force  and  arms,  at  the 
parish  and  in  the  ward  aforesaid,  in  London  aforesaid,  unlaw- 
fully, wickedly,  wilfully,  maliciously,  and  injuriously,  and  for  his 
own  lucre  and  gain,  did  expose  to  sale,  and  cause  and  procure 
to  be  exposed  to  sale,  in  the  said  public  and  open  market,  the 
said  last-mentioned  cow  which  was  so  then  and  there  infected 
with  the  said  disease  as  aforesaid,  with  the  intention  of  sell- 
ing and  disposing  of  the  same  to  the  said  butchers  and  others 
so  then  and  there  assembled  and  met  together  as  aforesaid^ 
and  that  the  same  might  be  bought  and  subsequently  slaugh- 
tered for  human  food,  to  wit,  for  the  food  of  certain  citizens 
of  said  Commonwealth,  the  said  J.  L.  P.  then  and  there  well 
knowing  that  the  said  last-mentioned  cow,  so  then  and  there 
exposed  to  sale  as  aforesaid,  would,  if  slaughtered,  be  unfit 
and  unwholesome  for  human  food,  and  greatly  prejudicial  to 
the  health  of  the  citizens  of  said  Commonwealth,  who  might 
eat  and  consume  the  same ;  to  the  damage,  etc.,  to  the  evil 
example,  etc.,  and  against  the  peace,  etc. 

Fourth  Count.  —  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  heretofore,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  and  in  the  ward  afore- 
said, in  London  aforesaid,  there  was,  and  from  time  imme- 
morial hath  been,  and  still  is,  a  certain  public  and  open  mar- 
ket, called  Smithfield  Market,  where  butchers  and  other  citi- 
zens of  said  Commonwealth,  have  been  used  and  accustomed 
to  assemble  and  meet  together,  and  where  divers  and  very 
many  butchers  and  other  citizens  of  said  Commonwealth, 
were  then  assembled  and  met  together  for  the  purpose  of 
buying  cattle,  to  be  subsequently  slaughtered  by  them  for 
human  food,  to  wit,  for  the  food  of  certain  others  of  the  citi- 
zens of  said  Commonwealth,  and  that  afterwards,  to  wit,  on 
the  day  and  year  aforesaid,  in  the  said  public  and  open  mar- 
ket, at  the  parish  and  in  the  ward  aforesaid,  in  London  afore- 
said, the  said  J.  L.  P.  was  possessed  of  one  other  cow,  which 


404  OFFENCES  AGAINST  THE  PUBLIC  HEALTH.     [CHAP.  XXXVIII. 

was  then  and  there  infected  with  a  loathsome,  deadly,  and 
dangerous  disease,  and  which  said  last-mentioned  cow,  the 
said  J.  L.  P.  then  and  there  well  knew  would,  if  slaughtered, 
be  vmfit  and  unwholesome  for  human  food,  and  greatly  preju- 
dicial to  the  health  of  any  of  the  citizens  of  said  Common- 
wealth, who  might  eat  and  consume  the  same ;  and  that  the 
said  J.  L.  P.  well  knowing  the  said  last-mentioned  premises, 
afterwards,  and  whilst  the  said  last-mentioned  cow  of  the 
said  J.  L.  P.  was  so  infected  with  the  said  disease  as  afore- 
said, on  the  day  and  year  aforesaid,  with  force  and  arms,  at  the 
parish  and  in  the  ward  aforesaid,  in  London  aforesaid,  unlaw- 
fully, wickedly,  wilfully,  maliciously,  and  injuriously,  and  for  his 
own  lucre  and  gain,  did  expose  to  sale  in  the  said  public  and 
open  market,  and  did  then  and  there  sell  the  said  last-men- 
tioned cow,  which  was  so  then  and  there  infected  with  the 
disease  as  aforesaid,  to  a  certain  butcher,  to  wit,  one  G.  G., 
in  order  that  the  same  might  be  subsequently  slaughtered  for 
human  food,  to  wit,  for  the  food  of  certain  citizens  of  said 
Commonwealth,  the  said  J.  L.  P.  then  and  there  well  know- 
ing that  the  said  last-mentioned  cow,  so  then  and  there  sold 
as  aforesaid,  would,  if  slaughtered,  be  unfit  and  unwholesome 
for  human  food,  and  greatly  prejudicial  to  the  health  of  the 
citizens  of  said  Commonwealth,  who  might  eat  and  consume 
the  same  ;  to  the  damage,  etc.,  to  the  evil  example,  etc.,  and 
against  the  peace,  etc. 


CHAPTER    XXXIX. 


PERJUEY. 

An  indictment  for  perjury  contains  the  following  allega-. 
tions  which  are  necessary  to  constitute  the  offence.  1.  That 
the  oath  was  taken  in  a  judicial  proceeding.  2.  Before  a 
competent  jurisdiction.  3.  And  was  material  to  the  point  in 
issue.  4.  The  oath  taken  by  the  defendant.  5.  Its  wilful 
falsehood,  that  is,  some  one  or  more  of  the  affirmative  asser- 
tions in  it  are  negatived  by  particular  averments,  (or  as  they 
are  technically  termed,  assignments  of  perjury,)  or  the  nega- 
tive assertions  contradicted  by  the  opposite  affirmative.     , 

It  is  sufficient  to  allege,  generally,  that  there  was  a  certain 
cause  pending,  and  that  it  came  on  to  be  tried  in  due  form  of 
law.i  And  it  is  unnecessary  to  set  out  any  part  of  the  indict- 
ment, declaration,  plea,  etc.,  on  the  issue  to  be  tried  at  the 
time  when  the  perjury  is  alleged  to  have  been  committed.^  It 
must  appear  that  the  court  administering  the  oath  had  com- 
petent jurisdiction.^  The  court  must  be  correctly  described  ;  * 
but  it  is  not  necessary  to  set  out  its  authority.    It  is  sufficient 


1  Rex  V.  Dowlin,  5  Term  Rep.  320. 

*  Rex  V.  Aylett,  1  Term  Rep.  G3. 

'  Commonwealth  r.  White,  8  Pickering,  452 ;  Lavey  v.  Regina,  7  Eng.  Law 
and  Eq.  Rep.  401 ;  2  Denison,  C.  C.  504 ;  Regina  v.  Hallett,  2  Denison,  C. 
C.  237;  3  Carrington  &  Kirwan  ;  4  Eng.  Law  and  Eq.  Rep.  570;  Rex  v. 
Hawks,  3  Carrington  &  Payne,  419 ;  The  State  v.  Furlong,  26  Maine,  69  ; 
The  State  v.  Keene,  26  Maine,  33 ;  Regina  v.  Hughes,  1  Carrington  &  Kir- 
wan, 518. 

*  The  State  v.  Street,  1  Murphey,  156. 


406  PERJURY.  [CIIAP.  XXXTX. 

to  say,  "  the  said  A.  B.  etc.,  then  and  there  having  competent 
power  and  authority  to   administer,"  etc.^ 

Although  it  is  not  necessary  to  set  out  the  proceedings  at 
length,  but  sufficient  to  set  forth  the  substance  of  the  offence, 
it  is  necessary  to  show  that  the  point  falsely  sworn  to,  was 
material  to  the  question  pending ;  for  if  it  were  irrelevant, 
though  false,  no  indictment  can  be  founded  upon  it.^  If  it 
sufficiently  appear  from  the  oath  itself  that  it  was  material  to 
the  matter  then  before  the  court,  that  fact  need  not  be  ex- 
pressly averred  ;  ^  otherwise  the  materiality  of  that  part  of  the 
oath  upon  which  perjury  is  assigned,  must  be  averred.*  It 
seems  to  be  sufficient  to  aver,  that  it  then  and  there  became 
and  was  a  material  question  upon  the  trial  of  the  said  cause, 
whether,  etc.,  without  showing  what  issue  was  joined,  or  any 
other  previous  circumstances  or  evidence  in  the  cause.^  And 
in  stating  the  question  which  is  averred  to  be  material,  it  is 
proper  to  mention  those  circumstances  which  must  after- 
wards be  connected  with  the  terms  of  the  defendant's  oath, 
in  order  to  assign  perjury  upon  that  meaning.^ 

It  must  be  alleged  that  the  defendant  was  upon  oath  ;  and 

1  1  Starkie,  Grim.  PI.  (London  ed.  1828),  115.  See  Rex  v.  Alford,  1 
Leach,  C.  C.  (4th  London  ed.),  150. 

'  Commonwealth  v.  Knight,  12  Massachusetts,  (Rand's  ed.),  373  ;  Common- 
wealth V.  Flynn,  3  Gushing,  525  ;  Commonwealth  v.  Pollard,  12  Metcalf,  229  ; 
The  State  v.  Hathaway,  2  Nott  &  McCord,  118  ;  The  State  v.  Strat,  1  ]\Iur- 
phey,  124  ;  Rex  r.  Prendergast,  Jebb,  G.  G.  64  ;  Regina  u.  Worley,  3  Cox,  C. 
C.  535  ;  Regina  v.  Owen,  6  Cox,  C.  C.  105  ;  Regina  v.  Lavey,  3  Carrington  & 
Kirwan,  26  ;  Regina  v.  Overton,  2  Moody,  C.  C.  263  ;  Regina  v.  Bennett,  4 
Eng.  Law  and  Eq.  Rep.  560;  2  Denison,  C.  G.  504  ;  Commonwealth  v.  Pick- 
ering, 8  Grattan,  628.  In  the  recent  case  of  Regina  v.  Phillpotts,  5  Cox,  C. 
C.  329,  336,  (1851,)  Mr.  Justice  Erie,  said,  "My  own  opinion  is,  that  the 
law  ought  to  be  that  whatever  is  sworn  deliberately,  and  in  open  court, 
should  be  the  subject  of  perjury,  but  that  undoubtedly  is  very  difTorent  from 
the  law  as  it  exists." 

'  Rex  V.  Souters,  2  Starkie,  Rep.  4  23;  1  Starkie,  Grim.  PI.  (London  cd. 
1828),  116;  Th(!  State  v.  Mumfbnl,  1  Devercaux,  519. 

*  Rex  V.  M'Keron,  5  Tcrin  Rep.  318. 

'  1  Starkie,  Grim.  PI.  (London  ed.  1H2H),  116. 

"  1  Starkie,  Grim.  Pi.  (London  cd.  1828),  416;  Rex  v.  Aylett,  1  Term 
Rep.  64. 


CHAP.  XXXIX.]  PERJURY.  407 

for  this  purpose,  it  is  sufficient  to  aver,  generally,  that  he  was 
duly  sworn  to  speak  the  truth,  of  and  concerning,  etc.  But 
this  fact  cannot  be  taken  by  intendment.^  It  is  not  necessary 
to  set  out  the  jurat  of  an  affidavit ;  ^  nor  to  state  or  prove 
that  the  affidavit  was  filed  or  exhibited  to  the  court,  or  in  any 
other  manner  used  by  the  defendant  or  others.^ 

In  setting  forth  the  matter  sworn,  it  is  not  essential  to  pro- 
fess the  same  particularity  as  is  necessary  in  indictments  for 
forgery  and  libel,  which  must  assume  to  set  out  an  exact  copy. 
It  seems  sufficient  to  say,  that  the  defendant,  upon  the  trial 
of  the  said  cause,  etc.,  did  falsely,  knowingly,  wilfully,  and 
corruptly  say,  depose,  and  swear,  that,  etc.,  or  to  the  effect 
following,  that,  etc.,  or,  where  the  evidence  is  given  before  a 
jury  or  magistrate  ore  tenus,  to  aver  that  he  falsely,  knowingly, 
maliciously,  wilfully,  and  corruptly  said,  deposed,  and  swore, 
that,  etc.  Where  the  perjury  is  assigned  upon  an  affidavit, 
it  is  usual  to  allege,  that  the  defendant  deposed  and  swore 
in  writing  as  follows,  that  is  to  say,  etc. ;  or,  falsely,  know- 
ingly, wilfully,  and  corruptly  said,  swore,  and  deposed,  that, 
etc.,  setting  out  the  affidavit  correctly.^  It  is  frequently  neces- 
sary, with  a  view  to  the  subsequent  assignments  of  perjury, 
to  point  the  defendant's  meaning,  when  it  is  too  generally 
expressed,  to  particular  facts  and  circumstances.  This  is 
effected  by  means  of  an  innuendo.^ 

The  assignment  of  perjury,  in  general,  consists  of  express 
contradictions  of  the  defendant's  statements,  as  explained  by 
the  innuendos. 


*  Rex  V.  Stevens,  5  Barnewall  &  Cresswell,  246  ;  Kex  v.  Richards,  7  Dow- 
ling  &  Ryland,  665. 

■  Rex  V.  Embden,  9  East,  437. 

'  Rex  V.  Crossley,  7  Term  Rep.  315. 

*  1  Starkie,  Crim.  PI.  (London  ed.  1828),  117,  118. 

*  As  to  the  proper  ofBce  of  an  innuendo,  see  ante,  p.  355. 


408  PERJURY.  [chap.  XXXIX. 


1.  Indictment  for  perjury  committed  at  the  Central  Criminal 
Court,  on  the  trial  of  an  indictment  for  ivounding;  ivith 
intent  to  murder?- 

The  jurors,  etc.,  upon  their  oath  present,  that  at  a  general 
session  of  the  delivery  of  the  Queen's  jail  at  Newgate,  holden 
for  the  jurisdiction  of  the  said  Central  Criminal  Court,  at 
Justice  Hall,  in  the  Old  Bailey,  in  the  suburbs  of  the  city  of 
London,  on  Monday,  the  sixth  day  of  January  in  the  year  of 

our  Lord ,  before  John  Musgrove,  Esquire,  mayor  of  the 

city  of  London,  Sir  Frederick  Pollock,  Knight,  chief  baron 
of  our  said  Lady  the  Queen,  of  her  Court  of  Exchequer,  Sir 
John  Patteson,  Knight,  one  of  the  justices  of  our  said  Lady 
the  Queen,  assigned  to  hold  pleas  before  the  Queen  herself, 
Sir  Thomas  Noon  Talfourd,  one  of  the  justices  of  our  said 
Lady  the  Queen,  of  her  Court  of  Common  Pleas,  assigned 
to  deliver  the  said  jail  of  Newgate  of  the  prisoners  therein 
being,  one  G.  H.  and  one  E.  H.  were,  in  due  form  of  law, 
tried  by  a  certain  jury,  upon  a  certain  indictment  then  and 
there  depending  against  them,  for  having  unlawfully,  mali- 
ciously, and  feloniously  assaulted  and  wounded  one  J.  P., 
with  intent  to  murder  her,  within  the  jurisdiction  of  the  said 
Central  Criminal  Court.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  at  and  upon  the  trial 

aforesaid,  one  S.  D.  late  of  the  parish  of ,  in  the  county 

of ,  single  woman,  did  appear  as  a  witness  for  and  on 

behalf  of  our  said  Lady  the  Queen,  and  then  and  there  before 
the  said  Central  Criminal  Court,  to  wit,  at  the  said  session 
of  jail  delivery,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  was  in  due  manner  sworn,  and  took  her  corporal  oath 
upon  th(!  Holy  Gospel  of  God  to  speak  the  truth  as  such  wit- 
ness as  aforesaid,  the  said  Central  Criminal  Court  then  and 
there  having  sufficient  and  competent  lawful  power  and 
authority  to  administer  the  said  oatli  to  the  said  S.  D.  in  that 
behalf.      And  llic  jurors  aforesaid,  upon  their  oath  aforesaid, 

*  5  Cox,  C.  C.  Ajipondix,  j).  xlv. 


CHAP.  XXXIX.]  PERJURY.  "  409 

do  further  present,  that  at  and  upon  the  said  trial  of  the  said 
G.  H.  and  E.  H.  upon  the  said  indictment  as  aforesaid,  it  be- 
came and  was  a  material  question  and  subject  of  inquiry 
whether  the  said  S.  D.  at  any  and  what  time,  and  whether  on 

the  second  day  of  December  in  the  year  of  our  Lord , 

and  whilst  the  said  S.  D.  was  standing  at  the  door  of  any 
house  in  Rupert  Street,  in  the  parish  of  Bethnal  Green,  in 
the  county  of  Middlesex,  saw  any  person  struggling,  and 
where  and  how  many  such  persons,  and  under  what  circum- 
stances, and  who  such  persons  and  every  of  them  were,  and 
whether  or  not  the  said  G.  H.  and  E.  H.  and  J.  P.,  or  either 
of  them,  were  struggling  together,  and  whether  or  not  any  of 
such  persons,  and  which  of  them  wore  masks,  and  whether  or 
not,  after  any  struggling,  any  and  which  of  such  persons  left 
or  went  away,  and  whether  or  not  before  they  so  left,  or  at 
any  other  time  upon  the  occasion  of  such  struggling,  the  said 
S.  D.  saw  the  said  J.  P.  upon  the  ground,  and  whether,  in 
fact,  the  said  J.  P.  was  upon  the  ground  after  any  such 
struggling,  and  whether,  in  fact,  there  had  been  any  struggling 
between  the  said  J.  P.  and  the  said  G.  H.  and  E.  H.,  or  either 
of  them,  and  what  were  the  particulars  and  circumstances 
attending  and  connected  with  any  such  struggling  at  the  time 
when  such  struggling  occurred.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said 
S.  D.,  being  so  sworn  as  aforesaid,  devising  and  wickedly 
intending  to  deceive  the  said  Central  Criminal  Court  in  the 
premises,  then  and  there  before  the  said  Central  Criminal 
Court,  at  the  said  session  of  jail  delivery,  to  wit,  on  the  said 

sixth  day  of  January  in  the  year  of  our  Lord ,  as  such 

witness  as  aforesaid,  upon  the  trial  aforesaid,  and  whilst  it 
was  such  material  question  and  subject  of  inquiry  as  afore- 
said, unlawfully,  falsely,  knowingly,  wilfully,  wickedly,  cor- 
ruptly, and  maliciously  did  say,  depose,  swear,  and  give 
evidence  to  the  said  Central  Criminal  Court,  amongst  other 
things,  in  substance  and  to  the  effect  following,  that  is  to  say, 
that  on  the  said  second  day  of  December  in  the  year  of  our 

Lord  ,  the  said   S.  D.,  after  leaving  the  said  J.  P.  at 

work  on  the  night  of  that  day,  went  home  to  her  own  house  in 

35 


410  PERJURY.  [CIIAP.  XXXIX. 

Rupert  Street,  (meaning  Rupert  Street  aforesaid,)  that  the 
said  S.  D.  stood  at  the  door  of  that  house,  and  whilst  so 
standing  there,  she  saw  a  man  and  two  women  struggling 
under  the  dead  wall,  under  the  lamp  nearest  to  the  door 
of   the    said    S.  D. ;    that  the  said  S.  D.  could   not  swear 
to  the  said  man,  but  that   the  said  E.  H.  was  one  of  the 
said    women,    and    that    the    said    S.    D.    observed   masks 
about  the  persons  of  the  said  man  and  the  said  last-men- 
tioned woman ;   that,  after   some  struggling,  the  said  man 
and   the  said   E.  H.  left,  and    that  before  they  so  left,  the 
said    S.  D.    saw   the  said   J.  P.  on    the   ground;   w^hereas, 
in   truth   and   in  fact,  the  said  S.  J),  did  not  on  the  said 
second    day  of   December,  while  standing   at   the   door  of 
any  house  in  Rupert  Street  aforesaid,  see  a  man  and  two 
W'omen,  or  any  person  whatever,  struggling  under  the  said 
wall  or  elsewhere,  as  the  said  S.  D.  so  said,  deposed,  swore, 
and  gave  in  evidence  as  aforesaid  ;  and  whereas  it  was  not 
nor  is  it  the  fact,  that  any  such  man  and  two  women,  or  any 
persons  whatever,  were  struggling  under  the  said  wall  at  the 
said  time  as  said,  deposed,  sworn  to,  and  given  in  evidence 
by  the  said  S.  D.  as  aforesaid,  as  the  said  S.  D.  at  the  time 
she  so  said,  deposed,  swore  to,  and  gave  evidence  as  aforesaid, 
well  knew ;  and  whereas,  in  truth  and  in  fact,  no  such  man 
or  women  as  the  said  S.  D.  in  that  behalf  said,  swore  to,  de- 
posed, and  gave  evidence,  wore  any  masks  whatever,  as  the 
said   S.  D.  so  said,  deposed  to,  swore,  and  gave  evidence  as 
aforesaid ;  and  whereas,  in  truth  and  in  fact,  the  said  S.  D. 
did  not  see  the  said  J.  P.  on  the  gi'ound  after  any  struggling 
wiiatever,  nor  was  the  said  J.  P.  so  on  the  ground  as  the  said 
S.  D.  so  said,  deposed  to,  swore,  and  gave  evidence  as  afore- 
said; and  whereas,  in  truth  and  in  fact,  the    said   alleged 
struggling,  and  tlu;  said  several  circumstances  in  connection 
therewith,  so  alleged  by  the  said  S.  D.  as  aforesaid,  had  no 
existence  whatever,  but  were  so  alleged,  sworn  to,  and  given 
in  evidence  as  aforesaid,  l)y  the  said  S.  D.,  for  the  ))urpose  of 
unlawfully,  wicketlly,  and  maliciously  causing  the  said  G.  H. 
and  the  said  E.  H.,  and  each  of  them,  falsely  to  be  convicted 
on  the  said  indictment,  and  for  no  other  purpose  whatsoever. 


CHAP.  XXXIX.]  PERJURY.  411 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  S.  D.  then  and  there,  before  the  said  Central 
Criminal  Court,  to  wit,  at  the  said  session  of  jail  delivery,  on 
the  said  first-mentioned  day  and  year  aforesaid,  at  the  parish 
first  aforesaid,  in  the  city  of  London  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  as  such  wit- 
ness as  aforesaid,  upon  the  trial  aforesaid,  upon  her  oath 
aforesaid,  the  said  Central  Criminal  Court  then  and  there 
having  lawful  and  competent  power  and  authority  to  admin- 
ister the  said  oath  to  the  said  S.  D.  as  aforesaid,  by  her  own 
act  and  consent,  and  of  her  own  most  wicked  and  corrupt 
mind,  in  manner  and  form  aforesaid,  falsely,  knowingly,  wick- 
edly, wilfully,  and  corruptly,  did  commit  wilful  and  corrupt 
perjury ;  to  the  evil  and  pernicious  example  of  all  others  in 
the  like  case  offending,  and  against  the  peace,  etc. 

2,  For  perjur)/  committed  before  a  grand-jury?- 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore, 
to  wit,  at  the  general  quarter-sessions  of  the  peace  of  our 
sovereign  Lady  the  Queen,  held  at  the  shire  hall  in  Shrews- 
bury, in  and  for  the  county  of  Salop,  on  Monday  in  the  first 
week  after  the  twenty-eighth  day  of  December,  to  wit,  the 

first  day  of  January  in  the  year  of  our  Lord ,  before  the 

Honorable  Thomas  Kenyon,  Sir  Baldwin  Leighton,  Baronet, 
John  Arthur  Lloyd,  Esquire,  and  others  their  associates,  her 
Majesty's  justices,  assigned  to  keep  the  peace  in  the  county 
aforesaid,  and  also  to  hear  and  determine  divers  felonies,  tres- 
passes, and  other  misdemeanors,  in  the  same  county  done 
and  committed,  a  certain  bill  of  indictment  against  Thomas 
Hughes,  late  of  the  parish  of  Whitchurch,  in  the  county  of 
Salop,  laborer,  and  Fanny  Porter,  wife  of  Richard  Porter, 
laborer,  late  of  the  parish  of  Whitchurch,  in  the  county 
aforesaid,  was  then  and  there,  in  due  form  of  law,  exhibited 
to  {naming  the  grand-jurors)  good  and  lawful  men  of  the  said 
county  of  Salop,  then  and  there  sworn  and  charged  to  in-' 

^  Regina  v.  Hughes,  1  Carringtoa  &  Klrwan,  519. 


412  PERJURY.  [chap.  XXXIX. 

quire,  for  our  said  Lady  the  Queen,  and  the  body  of  the  said 
county ;  which  said  bill  of  indictment  then  and  there  was  as 
follows,  that  is  to  say,  setting'  out  the  indictment  verbatim, 
which  was  against  Thomas  Hughes,  for  stealing  three  table- 
cloths, the  property  of  Richard  Hughes,  and  against  Fanny 
Porter,  for  receiving  them,  knowing  them  to  have  been  stolen. 
And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that,  to  wit,  on  the  day  and  year  first  afore- 
said, to  wit,  at  the  parish  of  St.  Chad,  in  the  borough  of 
Shrewsbury,  in  the  county  of  Salop,  and  before  the  said  good 
and  lawful  men,  who  were  so  sworn  and  charged  to  inquire 
as  aforesaid,  had  the  said  bill  of  indictment  exhibited  to  them 
as  aforesaid,  and  before  the  said  good  and  lawful  men  had 
inquired,  as  by  law  they  ought  to  do,  touching  the  matters 
stated  and  mentioned  in  the  said  bill  of  indictment,  and 
touching  the  truth  of  the  matters  stated  and  contained  in  the 
said  bill  of  indictment,  Mary,  the  wife  of  Richard  Hughes, 
late  of  the  parish  of  Whitchurch,  in  the  county  of  Salop, 
laborer,  appeared  before  the  court  of  general  quarter-sessions 
of  the  peace,  holden  as  aforesaid,  before  the  said  justices,  and 
the  said  others,  their  associates,  as  aforesaid,  as  a  witness  in 
support  of  the  said  bill  of  indictment,  and  was  then  and 
there,  at  the  said  general  quarter-sessions  of  the  peace,  holden 
as  last  aforesaid,  before  the  said  justices,  and  the  said  others, 
their  associates,  duly  sworn,  and  took  her  corporal  oath,  upon 
the  Holy  Gospel  of  God,  before  the  said  Honorable  Thomas 
Kenyon,  Sir  Baldwin  Leighton,  Baronet,  John  Arthur  Lloyd, 
Esquire,  and  the  said  others,  their  associates,  so  being  such 
justices  as  aforesaid,  at  the  said  general  quarter-sessions  of 
the  peace,  holden  as  aforesaid,  that  the  evidence  that  the  said 
Mary  Hughes  should  give  before  the  grand-jury,  (meaning 
before  the  said  good  and  lawful  men  so  sworn  and  charged 
as  aforesaid  to  inquire  as  aforesaid,)  on  the  said  bill  of  indict- 
ment should  be  the  truth,  the  whole  truth,  and  nothing  but 
the  trill h,  (ilie  said  H()noral)lc  '^rhoruns  Kenyon,  Sir  Baldwin 
Leighton,  Haronet,  John  Arlhur  liloyd,  l^'scpiire,  and  the  said 
others,  their  associates,  so  being  such  justices  as  aforesaid,  at 
tlie  said  general  (juartcr-sessions  of  the  ])eac(',  holden  as  afore- 


CHAP.  XXXIX.]  PERJURY.  413 

said,  then  and  there  having  sufficient  and  competent  authority 
to  administer  the  said  oath  to  the  said  Mary  Hughes  in  that 
behalf). 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  afterwards,  to  wit,  on  the  day  and  year 
first  aforesaid,  at  the  parish  of  St.  Chad,  in  the  borough  of 
Shrewsbury,  in  the  said  county  of  Salop,  the  said  good  and 
lawful  men,  behig  so  sworn  and  charged  as  aforesaid  to 
inquire  as  aforesaid,  did,  in  due  form  of  law,  and  according 
as  they  were  so  sworn  and  charged  as  aforesaid,  inquire 
touching  the  matters,  and  touching  the  truth  of  the  matters 
stated  and  contained  in  the  said  bill  of  indictment  so  exhib- 
ited to  them  as  aforesaid. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that,  upon  the  said  inquiry,  by  and  before  the 
said  good  and  lawful  men  so  as  aforesaid  sworn  and  charged 
to  inquire  as  aforesaid,  it  then  and  there  became  and  was  a 
material  question,  whether  three  tablecloths,  which  were  then 
and  there  produced  before  the  said  good  and  lawful  men, 
were  the  property  of  Richard  Hughes,  the  husband  of  the 
said  Mary  Hughes ;  and  that,  upon  the  said  inquiry,  it  then 
and  there  also  became  and  was  a  material  question,  whether 
the  said  three  tablecloths  were  the  property  of  the  said 
Thomas  Hughes ;  and  that,  upon  the  said  inquiry,  it  then  and 
there  became  and  was  a  material  question,  whether  the  said 
three  tablecloths  had  at  any  time  belonged  to  the  mother  of 
the  said  Mary  Hughes';  and  that,  upon  the  said  inquiry,  it 
then  and  there  became  and  was  a  material  question,  whether 
the  said  three  tablecloths  had  at  any  time  been  the  property 
of  the  said  Thomas  Hughes ;  and  that,  upon  the  said  inquiry, 
it  then  and  there  became  and  was  a  material  question, 
whether  the  said  three  tablecloths  had  at  any  time  been  the 
property  of  the  said  Richard  Hughes. 

And  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  afterwards,  to  wit,  on  the  day  and  year 
first  aforesaid,  at  the  parish  of  St.  Chad,  in  the  borough  of 
Shrewsbury  aforesaid,  in  the  county  of  Salop,  the  said  Mary 

35* 


414  PERJURY.  [chap.  XXXIX. 

Hughes,  being  so  sworn  as  aforesaid,  contriving  and  intend- 
ing to  pervert  the  due  course  of  justice,  went  before  the  said 
good  and  lawful  men,  so  sworn  and  charged  as  aforesaid  to 
inquire  as  aforesaid,  and  before  the  said  good  and  lawful 
men,  upon  the  said  inquiry  by  and  before  the  said  good  and 
lawful  men,  touching  the  matters,  and  touching  the  truth  of 
the  matters  stated  and  contained  in  the  said  bill  of  indict- 
ment, and  that  the  said  Mary  Hughes  then  and  there,  upon 
her  oath  aforesaid,  falsely,  corruptly,  knowingly,  wilfully,  and 
maliciously,  before  the  said  good  and  lawful  men  so  sworn 
and  charged  as  aforesaid,  to  inquire  as  aforesaid,  upon  the 
said  inquiry,  did  depose  and  swear,  amongst  other  things^in 
substance  and  to  the  effect  following,  that  is  to  say,  that  the 
three  tablecloths  which  were  then  and  there,  to  wit,  at  the 
time  and  place  last  aforesaid,  produced,  then  were  her  son's, 
(meaning  they  were  the  property  of  the  said  Thomas  Hughes,) 
and  that  the  said  tablecloths  had  belonged  to  the  mother  of 
the  said  Mary  Hughes,  and  were  to  be  divided  amongst  her 
the  said  Mary  Hughes's  children,  of  whom  the  said  Thomas 
Hughes  was  one  ;  whereas,  in  truth  and  in  fact,  the  said  table- 
cloths then  were  not  the  said  Mary  Hughes's  son's,  as  the 
said  Mary  Hughes  then  and  there  well  knew ;  and  whereas, 
in  truth  and  in  fact,  the  said  tablecloths  were  not  then  the 
property  of  the  said  Thomas  Hughes,  as  the  said  Mary 
Hughes  then  and  there  well  knew;  and  whereas,  in  truth 
and  in  fact,  neither  of  the  said  tablecloths  ever  had  been  the 
property  of  the  said  Thomas  Hughes ;  and  whereas,  in  truth 
and  in  fact,  the  said  tablecloths  then  were  the  property  of 
the  said  Richard  Hughes,  as  the  said  Mary  Hughes  then  and 
there  well  knew  ;  and  whereas,  in  truth  and  in  fact,  the  said 
tablecloths,  and  each  of  them,  were,  at  the  time  last  afore- 
said, and  for  twenty  years  and  more  before  that  time,  the 
property  of  the  said  Richard  Hughes,  as  the  said  Mary 
Hughes  then  and  there  well  knew ;  and  whereas,  in  truth  and 
in  fact,  the  said  tablecloths  never  did  belong  to  the  mother 
of  the  said  Mary  Hughes,  as  the  said  Mary  Hughes  then  and 
tli('i(-  well  knew;  and  whereas,  in  truth  and  in  fact,  the  said 
tuljhxioths  were  not  to  be  divided  amongst  the  children  of 


CHAP.  XXXIX.]  PERJURY.  415 

the  said  Mary  Hughes ;  and  whereas,  in  truth  and  in  fact, 
the  mother  of  the  said  Mary  Hughes  was  a  married  woman 
at  the  time  of  the  death  of  the  said  mother,  and  had  been  so 
for  twenty  years  and  more  before  the  time  of  her  said  death ; 
and  the  said  Thomas  Hughes  and  the  other  children  of  the 
said  Mary  Hughes  were  not  born  at  the  time  of  the  decease  of 
the  said  Mary  Hughes's  mother,  as  the  said  Mary  Hughes 
then  and  there  well  knew.  And  so  the  jurors  first  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  on  the  said  first  day  of 
January  in  the  year  first  aforesaid,  at  the  parish  of  St.  Chad 
aforesaid,  in  the  county  of  Salop,  before  the  said  good  and 
lawful  men,  so  sworn  and  charged  as  aforesaid  to  inquire  as 
aforesaid,  upon  their  inquiry  aforesaid  touching  the  matters, 
and  touching  the  truth  of  the  matters  stated  and  contained 
in  the  said  bill  of  indictment,  by  her  own  act  and  consent, 
and  of  her  own  most  wicked  and  corrupt  mind,  in  manner 
and  form  aforesaid,  falsely,  wickedly,  wilfully,  and  corruptly 
did  commit  wilful  and  corrupt  perjury ;  to  the  evil  example 
of  all  others  in  the  like  case  offending,  contrary  to  the  form  of 
tlie  statute  in  such  case  made  and  provided,  and  against  the 
peace,  etc. 

3.  For  perjury  committed  vpon  the  trial  of  an  indictment  at 
the  Central  Criminal  Courts 

The  jurors,  etc.,  upon  their  oath  present,  that  at  a  Gen- 
eral Session  of  the  delivery  of  the  Queen's  jail  of  Newgate, 
holden  for  the  jurisdiction  of  the  said  Central  Criminal  Court 
at  Justice  Hall,  in  the  Old  Bailey,  in  the  suburbs  of  the  city 
of  London,  on   Monday  the  twelfth  day  of  May  in  the  year 

of   our   Lord   ,  before   the   Right  Honorable   Sir  John 

Musgrove,  Baronet,  Lord  Mayor  of  the  city  of  London, 
Sir  Edward  Hall  Alderson,  Knight,  one  of  the  barons 
of  Her  Majesty's  Court  of  Exchequer,  Sir  Thomas  Noon 
Talfourd,  Knight,  one  of  the  justices  of  Her  Majesty's 
Court  of  Common  Pleas,  Thomas  Quested  Finnis,  Esquh-e, 

^  5  Cox,  C.  C,  Appendix,  p.  Ixviii. 


416  PERJURY.  [chap.  XXXIS. 

one  of  the  aldermen  of  the  said  city,  William  Lawrence, 
Esquire,  one  of  the  aldermen  of  the  said  city,  Russell  Gur- 
ney,  Esquire,  judge  of  the  Sheriff's  Court  of  the  said  city, 
and  others  their  fellow  justices,  assigned  to  deliver  the  said 
jail  of  Newgate  of  the  prisoners  therein  being,  one  W. 
D.  was,  in  due  form  of  law,  tried  by  a  certain  jury  upon 
a  certain  indictment,  then  and  there  depending  against  him 
for  unlawfully,  by  false  pretences,  false  representations,  and 
fraudulent  means,  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  attempting  and  endeavoring  to  procure  one 
A.  H.  N.,  a  woman  under  the  age  of  twenty-one  years,  to  wit, 
of  the  age  of  nineteen  years,  to  have  illicit  carnal  connection 
with  a  certain  man  unknown;  and  the  jurors  first  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  at  and  upon 

the  trial  aforesaid  the  said  A.  H.  N.,  late  of  the  parish  of , 

in  the  city  of  London  aforesaid,  single  woman,  did  appear  as 
witness  for  and  on  behalf  of  our  said  Lady  the  Queen,  and 
then  and  there  before  the  said  T.  Q,.  F.,  Esquire,  and  the  said  R. 
G.,  Esquire,  to  wit,  at  the  said  Session  of  Jail  Delivery,  on  the 
day  and  year  aforesaid,  in  the  city  of  London,  and  within  the 
jurisdiction  of  the  said  court,  was  in  due  manner  sworn,  and 
did  take  her  corporal  oath  upon  the  Holy  Gospel  of  God,  to 
speak  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  as 
such  witness  aforesaid,  the  said  T.  Q,.  F.  and  the  said  R.  G., 
Esquire,  then  and  there  having  sufficient  and  competent  lawful 
power  and  authority  to  administer  the  said  oath  to  the  said 
A.  H.  N.  in  that  behalf;  and  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  at  and  upon  the  said 
trial  of  the  said  W.  D.,  upon  the  said  indictment  as  aforesaid, 
it  then  and  there  became  and  was  a  material  question  and  sub- 
ject of  in([uiry,  whether  the  said  A.  H.  N.  knew  who  wrote  a 
certain  letter  then  and  there  produced  and  shown  to  the  said  A. 
H.  N.;  and  whether  she  had  at  any  time,  but  more  particularly 

on  or  about  the  thirtieth  March,  in  the  year  of  our  Lord , 

gone  to  the  house  of  one  J.  W.  for  the  purpose  of  getting  the 
said  J.  W,  to  write  a  letter  for  the  said  A.  H.  N.,  and  whether 
the  said  first-mentioned  letter  had  been  written  at  the  said  A. 
II.  N.'s  recjuest  by  the  said  J.  W.,  and  wliether  the  said  A.  H. 


CHAP.  XXXIX.]  PERJURY.  417 

N.  had,  in  giving  a  reason  to  the  said  J.  W.  why  she  wanted 
the  letter  written,  made  a  statement  in  substance  and  to  the 
effect  following,  that  is  to  say:  it  is  only  for  a  lark,  Mrs.  W., 
with  R.  R.  and  a  lot  of  us  ;  and  whether  the  said  A.  H.  N.  on 

the  thirty-first  day  of  March,  in  the  year  of  our  Lord , 

had  seen  the  said  W.  D.  near  a  certain  place  called  "  The  Ben 
Jonson,"  and  whether  any  conversation  then  took  place  between 
her  and  the  said  W,  D.,  and  whether  the  said  W.  D.  then  told 
the  said  A.  H.  N.  he  would  take  her  to  one  R.  R.,  and  whether 
the  said  W.  D.,  together  with  a  certain  cabman,  then  com- 
pelled her  to  get  into  a  certain  cab,  and  whether  the  said  A. 
H.   N.  then  screamed  and  resisted  the  attempt  to  force  her 
into  the  said  cab,  and  whether  the  said  W.  D.  then  got  into 
the  said  cab,  and  whilst  she  was  in  the  said  cab,  as  she  so 
alleged,  held  her  hands  while  he  put  a  handkerchief  to  her 
mouth,  and  whether  she  was  then  driven  in  the  said  cab 
through  certain  streets  to  a  certain  house,  and  whether  she 
was  subjected  to  violence  and  ill-treatment  by  any  persons  in 
the  said  house,  and  whether  whilst  she  was  in  the  said  house 
she  had  been  compelled  to  defend  herself  with  a  certain  knife 
which  a  certain  girl  in  the  said  house  had  given  her,  and 
whether  the  said  A.  H.  N.  had,  whilst  so  defending  herself,  cut 
a  certain  man  in  the  hand  with  the  said  knife,  and  whether  she 
had,  whilst  in  the  said  house,  been  compelled  to  drink  a  certain 
liquid  which  partially  stupefied  her,  and  whether  she  had,  on 
the  occasion  in  question,  seen  the  said  W.  D.  in  the  said 
house,  and  whether  the  said  W.  D.  then  told  her  he  would 
take  her  back  to  her  father,  and  whether  the  said  W.  D.  then 
took  her  in  the  said  cab  along  the  streets  until  they  came  to  a 
dark  street,  and  whether  the  said  \V.  D.  then  got  out  of  the 
cab  with  her  and  walked  with  her  a  certain  distance,  and 
w^hether  the  said  W.  D.  then  put  a  certain  direction  in  her 
hand  and  told  her  she  must  find  her  way  home  the  best  way 
she  could ;    and  whether  she  had  afterwards  gone  with  the 
said  J.  W.  to  ask  the  friends  of  the  said  "W-  D.  for  money, 
and  whether  one  E.  N.,  the  aunt  of  the  said  A.  H.  N.,  had 
ever  charged  the  said  A.  H.  N.  with  robbing  her,  and  whether 
the  said  A.  H.  N.  had  ever  attempted  to  drown  herself;    and 


418  PERJURY.  [chap.  XXXIX. 

the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent that  the  said  A.  H.  N.,  being  so  sworn  as  aforesaid,  but 
devising  and  wickedly  intending  to  injure  and  aggrieve  the 
said  W.  D.  and  to  deceive  the  said  court  in  the  premises,  then 
and  there  before  the  said  T.  Q.  F.,  Esquire,  and  the  said  R.  G., 
Esq.,  then  and  there  having  such  competent  and  lawful  power 
and  authority  to  administer  the  said  oath  to  her  as  aforesaid, 
at  the  said  session  of  jail  delivery,  to  wit,  on  the  said  twelfth 

day  of  March  in  the  year  of  our   Lord ,  at  the  parish 

aforesaid,  in  the  city  of  London  aforesaid,  and  within  the 
jurisdiction  of  the  said  Central  Criminal  Court,  as  such 
witness  as  aforesaid  upon  the  trial  aforesaid,  and  whilst 
it  was  such  material  question  and  subject  of  inquiry  as 
aforesaid,  unlawfully,  falsely,  knowingly,  wilfully,  and  cor- 
ruptly did  depose,  swear,  and  give  evidence  among  other 
things  in  substance  and  to  the  effect  following,  that  is 
to  say,  that  the  said  A.  H.  N.  did  not  know  who  wrote 
the  before-mentioned  letter,  which  was  then  and  there 
produced  and  shown  to  her,  and  that  she  did  not  on  or 
about  the  thirtieth  day  of  March,  nor  at  any  other  time,  go 
to  the  house  of  J.  W.,  meaning  J.  W.  aforesaid,  for  the  pur- 
pose of  getting  the  said  J.  W.  to  write  a  letter  for  the  said  A. 
H.  N.,  and  that  the  said  letter  above  mentioned  had  not  been 
written  at  the  said  A.  H.  N.'s  request  by  Mrs.  W.  (meaning 
thereby  J.  W.)  aforesaid,  nor  had  the  said  A.  H.  N.  requested 
any  person  whatsoever  to  write  the  said  letter ;  that  the  said 
A.  H.  N.  had  not  in  giving  a  reason  to  the  said  J.  W.  why 
she  wanted  the  said  letter  written,  made  a  statement  in  sub- 
stance and  to  the  effect  following,  that  is  to  say,  it  is  only  for 
a  lark,  Mrs.  W.,  with  R.  R.  and  a  lot  of  us;  that  the 
said  A.  H.  N.,  on  the  thirty-first  day  of  March  in  the  year 

of   our  Lord   ,  saw  the   said  W.  D.   near    "  The  Ben 

Jonsoji"  (meaning  the  Ben  Jonson  aforesaid),  and  that  a 
conversation  then  took  ]ilace  between  licr  and  the  said  W. 
D.,  and  that  the,  said  W.  D.  then  told  the  said  A.  11.  N. 
he  would  take  her  to  R.  R.  (meaning  R.  R.  aforesaid),  and 
that  the  said  W.  ]).,  together  with  a  cerlain  cal)man, 
Iheii  eMiiiix'lled    her    to    ijet    into    a    certain    cab,    and    that 


CHAP.  XXXIX.]  PERJURY.  419 

she  then  screamed  and  resisted  the  attempt  to  force  her  into 
the  said  cab,  and  that  the  said  W.  D.  then  got  into  the  said 
cab  with  her,  and  whilst  she  was  in  the  said  cab  held  her 
hands  while  he  put  a  handkerchief  to  her  mouth ;  that  she 
was  then  driven  in  the  said  cab  through  certain  streets  to  a 
certain  house,  and  that  she  was  then  subjected  to  violence 
and  ill-treatment  by  three  gentlemen  in  the  said  house,  who 
struggled  with  her  and  tried  to  force  her  up  stairs,  and  that 
whilst  she  was  in  the  said  house  she  was  compelled  to  defend 
herself  with  a  knife,  which  some  girl  in  the  said  house  had 
given  her  for  that  purpose,  and  that  the  said  A.  H.  N.,  whils 
so  defending  herself,  cut  one  of  the  said  gentlemen  in  the 
hand  with  the  said  knife  ;  that  she  had  whilst  in  the  said 
house  been  compelled  to  drink  a  certain  liquid  which  partially 
stupefied  her,  and  that  on  the  occasion  in  question  she  had 
seen  the  said  W.  D.  in  the  said  house,  and  that  in  conse- 
quence of  the  resistance  she  made  to  the  violence  and  ill- 
treatment  to  which  she  had  been  subjected  in  the  said 
house,  the  said  W.  D.  told  her  if  she  would  be  quiet 
he  would  take  her  back  to  her  father,  and  that  the  said  W. 
D.  then  took  her  in  the  said  cab  along  the  streets  until  they 
came  to  a  dark  street,  and  that  the  said  W.  D.  then  got  out 
of  the  cab  with  her  and  walked  with  her  a  certain  distance, 
and  the  said  W.  D.  then  put  a  certain  direction  in  her  hand 
and  told  her  she  must  find  her  way  home  the  best  way  she 
could ;  that  she  had  never  gone  with  the  said  J.  W.  to  ask 
the  friends  of  the  said  W.  D.  for  money ;  and  that  her  aunt 
(meaning  the  said  E.  N.)  had  never  charged  the  said  A.  H. 
N.  with  robbing  her,  and  that  the  said  A.  H.  N.  had  never  at- 
tempted to  drown  herself.  Whereas,  in  truth  and  in  fact  the 
said  A.  H.  N.,  at  the  time  she  so  deposed  and  swore  as  afore- 
said, well  knew  who  wrote  the  above-mentioned  letter ;  and 
whereas  in  truth  and  in  fact  she  did  go  on  or  about  the  thirtieth 
day  of  March  in  the  year  aforesaid,  to  the  house  of  the  said 
J.  W.  for  the  purpose  of  getting  the  said  J.  W.  to  write  the 
said  letter  for  the  said  A.  H.  N. ;  and  whereas  in  truth  and  in 
fact  the  said  letter  so  shown  to  her  on  the  said  trial  as  afore- 
said, was  written  at  the  said  A.  H.  N.'s  request  by  the  said  J. 


420  PERJURY.  [chap.  XXXIX. 

W. ;  and  whereas  in  truth  and  in  fact  the  said  A.  H.  N.,  in 
giving  a  reason  to  the  said  J.  W.  why  she  wanted  the  said 
letter  written,  made  a  statement  in  substance  and  to  the  effect 
following,  that  is  to  say,  it  was  only  for  a  lark,  Mrs.  "W.,  with 
R.  R.  and  a  lot  of  us  ;  and  Avhereas  in  truth  and  in  fact  the 
said  A.   H.  N.  did  not  on  the  thirty-first  day  of  March  in 

the  year  of  our  Lord  ,  see  the  said  W.  D.  near  "  The 

Ben  Jonson"  aforesaid,  nor  at  any  other  place,  and  that 
no  conversation  then  took  place  between  them,  nor  did 
the  said  W.  D.  then  tell  her  he  would  take  her  to  the  said 
R.  R.,  nor  did  the  said  W.  D.,  either  alone  or  with  any 
other  person,  compel  her  to  go  into  any  cab,  nor  did  she 
then  scream  and  resist  the  attempt  to  force  her  into  the 
said  cab,  nor  did  the  said  W.  D.  then  get  into  the  said 
cab  with  her,  nor  did  he  whilst  she  was  in  such  cab  or  else- 
where hold  her  hands  while  he  put  a  handkerchief  to  her 
mouth;  and  whereas  in  truth  and  in  fact  the  said  A.  H. 
N.  was  not  driven  to  any  house  where  she  was  subjected  to, 
nor  was  she  compelled  to  defend  herself  from  any  violence  or 
ill-treatment  whatsoever ;  and  whereas  in  truth  and  in  fact, 
the  said  W.  D.  did  not  tell  the  said  A.  H.  N.  that  if  she 
would  be  quiet  he  would  take  her  back  to  her  father ;  nor  did 
he  take  her  in  any  cab  along  the  street  until  they  came  to  a 
dark  street,  nor  did  he  get  out  of  any  cab  with  her  and  walk 
with  her,  nor  did  he  put  any  direction  in  her  hand,  nor  tell 
her  she  must  find  her  way  home  in  the  best  way  she  could ; 
and  whereas  in  truth  and  in  fact  the  said  A.  H.  N.  did  on  or 
about  the  thirtieth  day  of  March  in  the  year  of  our  Lord 

,  go  with  the  said  J.  W.  to  ask  the  friends  of  the  said 

W.  D.  for  money ;  and  whereas  in  truth  and  in  fact  her  aunt 
the  said  E.  N.  had  frequently  charged  the  said  A.  H. 
N.  with  robbing  her ;  and  whereas  in  truth  and  in  fact  the 
said  A.  H.  N.  did,  to  wit,  on  or  about  the         day  of 

in   tlie  year  of    our    Tjord  ,   aitenijit   to   drown   licrself; 

and  wherctas  in  truth  and  in  fact  tlie  said  W.  1).,  on  the  day 
th(!  said  A.  II.  N.  swore  she  met  with  hitn  as  aforesaid,  never 
saw  or  spolce  to  nor  was  in  conipaiiy  with  the  said  A.  H.  N., 
nor  was  he  near  the  placi,'  culled  "  The  Ben  Jonson  "  afore- 


CHAP.  XXXIX.J  PERJURY.  421 

said.  And  whereas  in  truth  and  in  fact  the  said  alleged  trans- 
actions relating  to  the  taking  of  the  said  A.  H.  N.  to  a  house 
in  the  manner  above  mentioned,  and  all  the  circumstances 
relating  thereto  so  alleged,  sworn  to,  and  given  in  evidence 
by  the  said  A.  H.  N.,  had  no  existence  whatever,  as  the  said 
A.  H.  N.  then  and  there  well  knew,  but  were  so  alleged, 
sworn  to,  and  given  in  evidence  as  aforesaid  by  the  said  A. 
H.  N.,  for  the  purpose  of  unlawfully,  wickedly,  and  mali- 
ciously causing  the  said  W.  D.  falsely  to  be  convicted  on  the 
said  indictment,  and  for  no  other  purpose  whatsoever.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  A.  H.  N.  then  and  there,  before  the  said  T.  Q.  F., 
Esquire,  and  the  said  R.  G.,  Esquire,  they  then  and  there  hav- 
ing such  power  and  authority  as  aforesaid,  to  wit,  at  the  said 
session  of  jail  delivery,  on   the   said   twelfth    day   of   May 

in  the  year  of   our   Lord   ,  at  the  parish  aforesaid,  in 

the  city  of  London  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  as  such  witness  as  aforesaid,  upon  the  trial 
aforesaid  of  her  own  proper  act  and  consent,  and  of  her 
own  most  wicked  and  corrupt  mind,  in  manner  and  form 
aforesaid  falsely,  knowingly,  wickedly,  wilfully,  and  corruptly 
did  commit  wilful  and  corrupt  perjury  ;  to  the  evil  and  per- 
nicious example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

4.  For  iierjury  committed  in  an  examination  before  a  co7nmis- 
missioner  of  bankrupts} 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  twenty- 
fourth  day  of  October  in  the  year  of  our  Lord ,  a  petition 

for  adjudication  of  the  bankruptcy  of  one  J.  S.  D.  was  under 
and  in  pursuance  of  the  statute  made  and  passed  in  the  ses- 
sion of  Parliament  holden  in  the  twelfth  and  thirteenth  years 
of  the  reign  of  our  Lady  the  Queen,  intituled  "  An  Act  to 
amend  and  consolidate  the  Laws  relating  to  Bankrupts," 
filed  and  prosecuted  in  the  Court  of  Bankruptcy  in  London ; 
and  that  the  said  J.  S.  D.  afterwards,  to  wit,  on  the  day  afore- 

^  5  Cox,  C.  C,  Appendix,  p.  Ixxii. 

36 


422  PERJURY.  [chap.  XXXIX. 

said,  in  the  year  aforesaid,  duly  became  and  was  declared 
and  adjudicated  to  be  a  bankrupt  under  and  within  the 
meaning  of  the  said  statute.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  afterwards,  and 
whilst  the  proceedings  upon  and  in  respect  of  the  said  bank- 
ruptcy were  depending  in  the  said  Court  of  Bankruptcy,  to 
wit,  on  the  seventeenth  day  of  November  in  the  year  of  our 
Lord ,  J.  H.  came  before  E.  H.,  Esquire,  at  the  Bank- 
ruptcy court  house,  in  Basinghall  street,  in  the  city  of  Lon- 
don, and  within  the  jurisdiction  aforesaid,  to  be  examined  in 
the  said  Court  of  Bankruptcy  in  the  matter  of  the  said  bank- 
ruptcy, by  and  before  the  said  E.  H.,  touching  and  concerning 
the  trade,  dealings,  and  estate  of  the  said  bankrupt,  the  said 
E.  H.  then  being  a  commissioner  of  the  said  Court  of  Bank- 
ruptcy, duly  appointed  and  empowered  to  act  in  the  matter 
of  the  said  bankruptcy,  and  to  examine  the  said  J.  H.  in  that 
behalf ;  and  that  the  said  J.  H.  then  and  there,  before  the  said 
E.  H.,  was  duly  sworn,  and  took  his  corporal  oath,  that  the 
evidence  he  should  give  in  and  upon  his  said  examination 
should  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth :  the  said  E.  H.  then  and  there  having  competent  power 
and  authority  to  administer  the  said  oath  to  the  said  J.  H.  in 
that  behalf  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  at  and  upon  the  said  examina- 
tion of  the  said  J.  H.,  and  at  the  time  the  said  J.  H.  so 
deposed  and  swore  as  hereinafter  mentioned,  it  then  and  there 
became  and  was  material  in  and  to  the  matter  of  the  said 
bankruptcy,  to  inquire  what  was  the  nature  and  extent  of  the 
dealings  of  the  said  J.  H.  with,  and  of  his  purchases  from  the 
said  bankrupt,  and  especially  of  the  extent  and  of  the  manner 
of  dealing  with  respect  to  such  purchases,  during  the  months 

of  September  and  October  in  the  year  of  our  Lord ,  and 

whether  tin;  said  .1.  H.  had,  previous  to  the  second  day  of 
September  in  llic  y<'iii-  afon'said,  made  any  purchases  of  goods 
from  the  said  l)ankriipt  to  the  extent  of  ten  pounds  at  one 
lime;  and  whether  certain  ])ur('liases,  for  and  in  respect  of 
which  certain  invoices,  marked  icspeitively  B,  C,  D,  E,  F,  G, 
II,  I,  K,  li,  and  I\l,  and  j)i()da(»d  by  the  said  J.  11.  at  and  upon 


CHAP.  XXXIX.]  PERJURY.  423 

his  said  examination,  were  all  the  purchases  over  five  pounds 
which  the  said  J.  H.  had  made  from  the  said  bankrupt  in 
September  in  the  year  aforesaid ;  and  whether  certain  in- 
voices, produced  by  the  said  J.  H.  at  and  upon  his  said  exam- 
ination, and  marked  respectively  N,  O,  P,  and  Q,  were  all  the 
invoices  which  the  said  J.  H.  had  received  from  the  said 
bankrupt  in  the  month  of  October  in  the  year  aforesaid ;  and 
whether  the  purchases  made  by  the  said  J.  H.  from  the  said 
bankrupt,  in  the  said  month  of  October,  and  for  which  the 
said  J.  H.  did  not  take  invoices,  exceeded  fifteen  pounds  ;  and 
whether  the  said  J.  H.  had  ever  gone  with  the  said  bankrupt  to 
the  house  of  a  pawnbroker  in  Sloane  street,  named  C.  L.,  to 
redeem  goods ;  and  whether  the  said  J.  H.  had  ever  redeemed 
any  deposits  made  by  the  said  bankrupt  to  the  said  C.  L.,  a 
pawnbroker  in  Sloane  street ;  and  whether  the  said  J.  H.  had 
ever  sold  any  goods  which  had  been  received  or  purchased  by 
the  said  bankrupt,  to  one  B.  P.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  J. 
H.,  being  so  sworn  as  aforesaid,  did  then  and  there,  upon  his 
said  examination,  upon  his  oath  aforesaid,  falsely,  corruptly, 
knowingly,  wilfully,  and  maliciously,  before  the  said  E.  H., 
depose  and  swear,  amongst  other  things,  in  substance  and 
to  the  effect  following,  that  is  to  say,  my  dealings  (mean- 
ing his  the  said  J.  H.'s  dealings)  with  D.  (meaning  the  said 
bankrupt)  commenced  in  May  last,  but  they  were  not  then 
to  any  extent,  and  I  (meaning  the  said  J.  H.)  always  took  a 
bill  of  parcels  when  I  purchased  to  the  extent  of  five  pounds 
or  ten  pounds.  I  keep  all  my  bills  of  parcels ;  and  all  the  bills 
of  parcels  I  have  had  from  D.  (meaning  the  said  bankrupt), 
I  (meaning  the  said  J.  H.)  have  now  with  me  here,  but  I  had 
no  bills  of  parcels  from  D.  (meaning  the  said  bankrupt),  till  the 
second  of  September  last  (meaning  the  month  of  September 
in  the  year  aforesaid),  as  all  my  previous  transactions  with 
him  (meaning  the  said  bankrupt)  were  of  a  very  trifling 
character,  before  the  second  of  September  last  (meaning  the 
month  of  September  in  the  year  aforesaid),  I  (meaning  the  said 
J.  H.)  had  no  one  transaction  with  D.  (meaning  the  said  bank- 
rupt) to  the  extent  of  ten  pounds,  but  I  may  have  had  to  the 


424  PERJURY.  [chap.  XXXIX. 

extent  of  about  five  pounds  from  the  second  day  of  September 
last.  I  have  had  invoices  of  all  my  (meaning  the  said  J.  H.) 
purchases  and  dealings  with  D.  (meaning  the  said  bankrupt). 
I  (meaning  the  said  J.  H.)  do  not  remember  going  with  the 
bankrupt  (meaning  the  said  bankrupt)  to  a  pawnbroker's  in 
Sloane  Street,  named  L.,  to  redeem  goods ;  and  I  say  posi- 
tively that  I  never  did  go  there  with  the  bankrupt  (meaning 
the  said  bankrupt).  I  (meaning  the  said  J.  H.)  bought  of 
him  (meaning  the  said  bankrupt)  in  the  month  of  September 
(meaning  September  in  the  year  aforesaid),  goods  to  the 
value  of  several  hundred  pounds.  I  produce  all  the  invoices 
of  my  (meaning  the  said  J.  H.)  purchases  of  him  (meaning 
the  said  bankrupt)  in  September  (meaning  September  afore- 
said) ;  they  are  marked  respectively  B,  C,  D,  E,  F,  G,  H,  I, 
K,  L,  and  M ;  those  are  all  the  purchases  over  five  pounds 
which  I  purchased  of  D.  (meaning  the  said  bankrupt)  in  Sep- 
tember. My  purchases  of  him  under  five  pounds,  but  of 
which  I  took  no  invoices,  were  few  in  number  during  that 
month.  My  last  purchase  of  D.  for  which  I  took  an  invoice, 
was   on   the    eighth   day   of    October   in   the   year   of    our 

Lord  ,  and  since  that  time  I  have  made  very  trifling 

purchases  of  D.  I  (meaning  the  said  J.  H.)  produce  all 
my  invoices  of  D.  (meaning  the  said  bankrupt)  in  the  month 
of  October,  (meaning  the  month  of  October  in  the  year 
aforesaid,)  which  are  marked  respectively  N,  O,  P,  and  Q. 
My  dealings  with  D.  in  this  month  of  October,  for  which  I 
took  invoices,  amounted  together  to  about  one  hundi'cd  and 
fifteen  pounds  ;  any  other  purchases  of  him  (meaning  the  said 
bankrupt)  in  the  month  of  October,  (meaning  October  in  the 
year  aforesaid,)  for  which  I  did  not  take  invoices,  amounted 
to  not  more  than  fifteen  pounds.  I  (meaning  the  said  J.  H.) 
never  did  on  any  occasion  redeem  any  deposits  made  by  D. 
(meaning  the  said  bankrupt)  to  Mr.  L.,  a  pawnbroker  in 
Sloane  Street,  (meaning  the  said  C.  L.,)  and  that  I  speak 
positively  to.  I  (meaning  the  said  J.  IT.)  never  sold  any  of 
D.'s  goods  (meaning  any  goods  which  the  said  J.  H.  had 
received  or  purciiased  from  the  said  bankrupt)  to  B.  P.  of 
Castle  Street,  Saint  Mary  Axe  (meaning  tiic  said  B.  P.)  ; 


CHAP.  XXXIX.]  PERJURY.  425 

whereas,  in  truth  and  in  fact,  the  said  J.  H.  had,  previous  to 
the  said  second  day  of  September  in  the  year  aforesaid,  had 
divers  transactions  with  the  said  bankrupt,  each  of  which 
transactions  had  been  and  was  to  a  much  greater  extent  than 
the  sum  of  ten  pounds.  And  whereas,  in  truth  and  in  fact, 
the  said  J.  H.  had,  previous  to  the  said  second  day  of  Sep- 
tember last  aforesaid,  made  divers  purchases  of  goods  of  and 
from  the  said  bankrupt,  each  of  which  said  purchases  had 
been  and  was  to  a  much  greater  amount  and  extent  than  ten 
pounds  at  one  time ;  and  whereas,  in  truth  and  in  fact,  the 
said  purchases  for  and  in  respect  of  which  the  said  invoices 
marked  respectively  B,  C,  D,  E,  F,  G,  H,  I,  K,  L,  and  M, 
were  purchased  by  the  said  J.  H.  at  and  upon  his  said  exam- 
ination, were  not  all  the  purchases  above  the  amount  of  five 
pounds  which  the  said  J.  H.  had  made  and  purchased  from 
the  said  bankrupt  in  the  month  of  September  in  the  year 
aforesaid;  and  whereas,  in  truth  and  in  fact,  the  said  J.  H. 
had,  in  the  said  month  of  September,  made  divers  purchases 
of  goods,  to  a  greater  amount  than  five  pounds  each  pur- 
chase, from  the  said  bankrupt,  to  wit,  a  certain  purchase  of 
five  dozen  silver  spoons  and  forks,  for  a  sum  exceeding  five 
pounds,  to  wit,  twenty  pounds  ;  and  a  certain  other  purchase 
of  two  gold  watches,  for  a  sura  exceeding  five  pounds,  to  wit, 
fifteen  pounds,  the  said  last-mentioned  purchases  being  other 
and  different  from  any  of  the  said  purchases  in  September 
aforesaid,  the  invoices  for  and  in  respect  of  which  were  so 
produced  by  the  said  J.  H.  aforesaid ;  and  whereas,  in  truth 
and  in  fact,  the  purchases  made  by  the  said  J.  H.  from  the 
said  bankrupt  in  the  month  of  October  in  the  year  aforesaid, 
and  for  which  the  said  J.  H.  did  not  take  invoices,  greatly 
exceeded  the  sum  of  fifteen  pounds,  and  amounted  to  a  much 
larger  sum,  to  wit,  to  the  sum  of  one  hundred  pounds ;  and 
whereas,  in  truth  and  in  fact,  the  said  J.  H.  did,  to  wit,  on  the 
eighth  day  of  October  in  the  year  aforesaid,  go  to  the  shop 
of  the  said  C.  L.,  in  Sloane  street  aforesaid,  to  redeem  goods, 
and  did  then  and  there  redeem  of  and  from  the  said  C.  L. 
certain  deposits  made  by  the  said  bankrupt  to  and  with  the 
said  C.  L.,  as  the  said  J.  H.  at  the  time  he  so  deposed  and 

36* 


426  PERJURY.  [chap.  XXXIX. 

swore  as  aforesaid  then  well  knew;  and  whereas,  in  truth 
and  in  fact,  the  said  J.  H.  had  sold  divers  goods,  to  wit,  five 
dozen  silver  spoons  and  forks,  and  four  gold  watches,  which 
the  said  J.  H.  had  received  from  the  said  bankrupt,  to  the  said 
B.  P.,  as  the  said  J.  H.  at  the  time  he  so  deposed  and  swore 
as  aforesaid,  then  and  there  well  knew ;  against  the  peace,  etc. 
Second  Count.  —  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  on  the  twenty-fourth 

day  of   October  in  the  year  of  our   Lord,  ,  a  petition 

for  the  adjudication  of  the  said  bankruptcy  of  the  said 
J.  S.  D.  was,  under  and  in  pursuance  of  the  said  statute, 
filed  and  prosecuted  in  the  Court  of  Bankruptcy  in  Lon- 
don, and  that  the  said  J.  S.  D.  afterwards,  to  wit,  on  the 
day  last  aforesaid,  in  the  year  last  aforesaid,  duly  became 
and  was  declared  and  adjudicated  to  be  a  bankrupt, 
under  and  within  the  meaning  of  the  said  statute.  And 
the  jurors  aforesaid  upon  their  oath  aforesaid  do  further 
present,  that  afterwards  and  whilst  the  said  proceedings  upon 
and  in  respect  of  the  said  last-mentioned  bankruptcy  w^ere 
depending  in  the  said  Court  of  Bankruptcy,  to  wit,  on  the  first 

day  of  December  in  the  year  of  our  Lord, ,  the  said  J. 

H.  came  before  the  said  E.  H.,  Esq.,  at  the  Bankruptcy  Court 
House  in  Basinghall-street,  in  the  city  aforesaid,  and  within 
the  jurisdiction  aforesaid,  to  be  examined  in  the  said  Court  of 
Bankruptcy,  in  the  matter  of  the  said  bankruptcy,  by  and 
before  the  said  E.  H.,  touching  and  concerning  the  trade, 
dealings,  and  estate  of  the  said  bankrupt,  he  the  said  E.  H. 
then  being  a  Commissioner  of  the  said  Court  of  Bankruptcy, 
duly  appointed  and  empowered  to  act  in  the  matter  of  the 
said  liankriiptcy^  and  to  examine  the  said  J.  H.  in  that 
behalf;  and  that  the  said  J.  H.  then  and  there  before  the  said 
E.  II.,  was  duly  sworn  that  the  evidence  which  the  said  J.  H. 
shouhl  give  in  and  upon  his  said  examination,  sliould  be  the 
trntli,  1li(;  whole  truth,  and  nothing  but  the  truth,  the  said 
E.  H.  then  and  tiiere  having  a  competent  power  and  author- 
ity to  administer  the  said  oath  to  the  said  J.  II.  in  that 
b('h;iir.  And  tlie  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  lint  her  present,  that  in  and  upon  the  said  last-mentioned 


CHAP.  XXXIX.]  PERJURY.  427 

examination  of  the  said  J.  H.,  and  at  the  time  the  said  J.  TI. 
so  deposed  and  swore  as  hereinafter  mentioned,  it  then  and 
there  became  and  was  material  in  and  to  the  matter  of  the  said 
bankruptcy,  to  inquire  whether  the  said  J.  H.  had  ever  been 
to  the  shop  of  a  pawnbroker  named  C.  L.,  in  Sloane  street, 
or  to  any  pawnbroker's  in  Sloane  street,  to  redeem  goods 
pledged  to  the  said  C,  L.  by  the  said  bankrupt ;  and  whether 
the  said  J.  H.  had  on  the  twenty-first  and  twenty-third  days 
of  October  in  the  year  aforesaid,  respectively  redeemed  at 
the  shop  of  one  J.  R.  goods  pledged  by  the  said  bankrupt 
with  the  said  J.  R. ;  and  whether  the  pawnbroker's  tickets  for 
and  in  respect  of  certain  goods  which  had  been  redeemed  by 
the  said  J.  H.  at  the  shop  of  the  said  J.  R.,  on  the  twenty-first 
and  twenty-third  days  of  October  in  the  year  aforesaid 
respectively  had  been  received  by  the  said  J.  H.  from  the  said 
bankrupt.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  J.  H.,  being  so  sworn  as 
last  aforesaid,  did  then  and  there,  upon  his  said  last-men- 
tioned examination,  upon  his  oath  last  aforesaid,  falsely,  cor- 
ruptly, knowingly,  wilfully,  and  maliciously  depose,  and  swear, 
amongst  other  things,  in  substance  and  to  the  effect  following, 
that  is  to  say,  I  (meaning  the  said  J.  H.)  did  not,  on  or  about 
the  eighth  day  of  October  last  (meaning  October,  in  the  year 
aforesaid)  accompany  the  bankrupt  (meaning  the  said  bank- 
rupt) to  or  meet  the  bankrupt  at  L.'s,  in  Sloane  street  (mean- 
ing the  said  C.  L.'s),  and  redeem  two  lots  of  goods  pledged 
by  the  bankrupt  at  L.'s ;  one  lot  for  ten  pounds,  and  the  other 
lot  for  eighty  pounds,  I  (meaning  the  said  J.  H.)  never 
redeemed  any  lots  at  L.'s  (meaning  the  said  C.  L.).  I  recol- 
lect on  one  occasion  meeting  the  bankrupt  (meaning  the  said 
bankrupt)  near  the  Exhibition,  in  the  evening,  and  he  then 
asked  me  to  accompany  him  somewhere  in  that  neighbor- 
hood, and  I  did  so,  but  it  was  not,  to  my  knowledge,  to  a 
pawnbroker's ;  the  bankrupt  went  in  at  a  private  entrance,  and 
the  bankrupt  beckoned  me  in  and  I  saw  the  bankrupt  produce 
some  letter  or  ticket,  and  I  saw  some  goods  handed  out.  I 
helped  the  bankrupt  to  count  out  his  money.  I  then  left  the 
room,  and  the  bankrupt,  on  coming  out,  told  me  he  had  a 


428  PERJURY.  [chap.  XXXIX. 

fine  lot  of  goods,  which  he  proposed  to  sell  me.  I  (meaning 
the  said  J.  H.)  cannot  say  whether  that  was  at  Mr.  L.'s 
(meaning  the  said  C.  L.'s)  house.  Upon  that  occasion  I  did 
not  produce  the  money,  and  I  did  not  myself  redeem  the 
goods.  I  (meaning  the  said  J.  H.)  have  redeemed  some 
goods  at  M.  R.'s  in  Shoreditch  (meaning  the  shop  of  the 
said  J.  R.),  but  I  cannot  say  the  date  or  the  amount,  nor 
whose  tickets  they  were,  nor  if  I  received  the  tickets  from 
the  bankrupt  (meaning  the  said  bankrupt).  I  cannot  say 
if  I  redeemed  any  goods  whatever  at  R.'s  since  the  seven- 
teenth of  October  last.  I  redeemed  on  two  occasions  at 
R.'s,  goods  belonging  to  the  bankrupt,  but  those  I  redeemed 
some  time  in  the  summer  wdth  money  supplied  me  by  the 
bankrupt  for  the  purpose,  and  on  those  occasions  I  deliv- 
ered the  goods  to  the  bankrupt.  I  (meaning  the  said  J. 
H.)  did  not,  to  my  recollection,  on  the  twenty-first  October 
last  (meaning  October  in  the  year  aforesaid)  redeem  goods 
pledged  for  fifty  pounds,  at  R.'s,  in  Shoreditch,  (meaning  the 
shop  of  the  said  J.  R.).  The  bankrupt  did  not  give  me 
money  to  redeem  the  goods  at  R.'s,  which  it  is  supposed  I 
redeemed  on  the  twenty-first  and  twenty-third  October  last, 
but  I  do  not  recollect  that  I  (meaning  the  said  J.  H.)  did 
redeem  any  such  goods  about  that  time  at  R.'s.  I  take  out  a 
great  quantity  of  goods,  which  are  pledged  by  other  persons, 
all  over  London,  and  I  cannot  recollect  one  transaction  of 
that  kind  from  another.  I  did  not,  to  my  knowledge,  retain 
out  of  the  duplicates  or  deposit  notes  which  I  received  from 
the  bankrupt,  on  the  seventeenth  October,  two  relating  to 
goods  deposited  at  R.'s  for  two  sums  of  fifty  pounds  each,  nor 
do  I  recollect  having  retained  any  other  of  the  tickets  which 
I  had  of  D.  (meaning  the  said  bankrupt)  on  the  seventeenth 
October  last,  besides  those  I  have  mentioned  in  my  former 
examination.  'J'lic  tickets  which  I  did  retain  of  the  bankruj)t 
on  1he  scvcniccnth  October  last,  and  which  I  have  since 
redeemed,  were  as  follows:  —  One  at  S.'s  for  twenty-five 
j)()iin(ls,  ten  shillings;  one  at  Mr.  R.  A.'s  for  twenty-seven 
])()Mnds;  and  on(!  other  at  Mr.  R.  A.'s  for  eighty  pounds.  I 
also  retained  one  other  deposit  note  at  Mr.  A.'s  for  one  hun- 


CHAP.  XXXIX.]  PERJURY.  429 

dred  pounds,  ten  shillings,  which  T,  at  the  time  of  my  last 
examination,  handed  to  Mr.  V.  S.  for  the  assignees.  I  do 
not  recollect  retaining  the  duplicates  which  I  had  from  the 
bankrupt  on  the  seventeenth  October  last,  any  other  than  the 
four  mentioned  notes.  I  (meaning  the  said  J.  H.)  never  had 
of  D.  (meaning  the  said  bankrupt)  any  other  pawnbroker's 
tickets  than  those  I  have  already  stated;  therefore  if  I  (mean- 
ing the  said  J.  H.)  did  redeem  any  goods  at  R.'s  (meaning 
the  shop  of  the  said  J.  R.)  on  the  twenty-first  October  last 
(meaning  October  in  the  year  aforesaid),  and  on  the  twenty- 
third  October  last,  I  (meaning  the  said  J.  H.)  had  not  the 
tickets  from  the  bankrupt  (meaning  the  said  bankrupt). 
Whereas  in  truth  and  in  fact  the  said  J.  H.  did,  on  the  eighth 
day  of  October,  in  the  year  aforesaid,  accompany  the  said 
bankrupt  to  the  shop  of  the  said  C.  L.,  in  Sloane  street,  and 
then  redeemed  two  lots  of  goods  pledged  by  the  said  bank- 
rupt at  the  said  C.  L.'s,  one  lot  for  ten  pounds,  and  the  other 
lot  for  eighty  pounds,  as  the  said  J.  H.,  at  the  time  he  so 
deposed  as  last  aforesaid,  then  well  knew.  And  whereas  in 
truth  and  in  fact  the  said  J.  H.  did  produce  the  money  with 
which  the  said  two  lots  of  goods  pledged  by  the  said  bank- 
rupt at  the  said  C.  L.'s,  in  Sloane  street  aforesaid,  were 
redeemed.  And'whereas  in  truth  and  in  fact  the  said  J.  H. 
did,  on  the  twenty-first  day  of  October  in  the  year  aforesaid, 
redeem  at  the  shop  of  the  said  J.  R.  goods  pledged  by  the 
said  bankrupt  with  the  said  J.  R.  for  fifty  pounds,  as  the  said 
J.  H.,  at  the  time  he  so  deposed  as  in  this  count  mentioned, 
then  well  knew.  And  whereas  in  truth  and  in  fact,  the  said 
J.  H.  had  received  the  pawnbroker's  ticket  for  and  in  respect 
of  the  said  last-mentioned  goods  from  the  said  bankrupt,  as 
the  said  J.  H.,  at  the  time  he  so  deposed  as  aforesaid,  well 
knew.  And  whereas  in  truth  and  in  fact  the  said  J.  H.  had, 
on  the  twenty-third  day  of  October  in  the  year  aforesaid, 
redeemed  at  the  shop  of  the  said  J.  R.  the  goods  pledged  by 
the  said  bankrupt  with  the  said  J.  R.  for  fifty  pounds,  as  the 
said  J.  H.,  at  the  time  he  so  deposed  as  last  aforesaid,  well 
knew.  And  whereas  in  truth  and  in  fact  the  said  J.  H.  had 
received  the  pawnbroker's  ticket  for  and  in  respect  of  the  said 


430  PERJURY.  [chap.  XXXIX. 

last-mentioned  goods  from  the  said  bankrupt,  as  the  said  J. 
H.,  at  the  time  he  so  deposed  as  last  aforesaid,  well  knew ; 
against  the  peace,  etc. 

5.  For  perjury  against  a  ivitness  ivlio,  on  a  former  trial,  had 
sivorn  that  a  note  ivas  given  to  the  plaintiff  for  the  purpjose 
of  being  discounted  merely,  and  not  in  payment  of  a  debt?- 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 
wit,  on  the  fourteenth  day  of  January  in  the  year  of  our 

Lord ,  certain  issues  theretofore  joined  in  a  certain  cause 

then  lately  depending  in  the  court  of  our  said  Lady  the 
Queen,  before  the  Barons  of  her  Majesty's  Exchequer,  at 
Westminster,  in  which  cause  one  A.  H.  was  the  plaintiff,  and 
M.  B.  was  defendant,  to  wit,  at  the  sitting  of  nisi  prins  holden 
in  Hilary  term,  for  the  county  of  Middlesex,  to  wit,  on  the 
fourteenth  day  of  January  in  the  year  aforesaid,  at  West- 
minster aforesaid,  in  the  great  hall  of  pleas  there,  commonly 
called  Westminster  Hall,  and  within  the  jurisdiction  of  the 
said  Central  Criminal  Court,  according  to  the  form  of  the 
statute  in  such  cases  made  and  provided,  before  Sir  Robert 
Mounsey  Rolfe,  Knight,  then  and  there  being  one  of  the 
Barons  of  her  Majesty's  said  Court  of  Exohequer,  at  West- 
minster, came  on  to  be  tried  in  due  form  of  law,  and  were 
then  and  there  tried  by  a  jury  of  the  said  county  of  Middle- 
sex in  that  behalf  duly  taken  and  sworn  between  the  parties 
aforesaid.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  upon  the  trial  of  the  said  issues 
so  joined  between  the  parties  aforesaid,  one  T.  P.,  late  of  the 
parish  of  Saint  Margaret,  within  the  liberty  of  Westminster, 
in  th(!  said  county  of  Middlesex,  and  within  the  jurisdiction 
aforesaid,  laborer,  did  then  and  there,  to  wit,  on  the  day  and 
year  aforesaid,  at  the  parish  of  Saint  Margaret,  within  the 
liberty  and  county  and  jurisdiction  aforesaid,  appear  and  was 
produced  as  a  witness  for  and  on  behalf  of  the  said  M.  B.,  the 
defendant  in  the  said  cause,  and  that  the  said  T.  P.  was  then 
and  ihcrc  duly  sworn,  and  did  ilicn  and  tiierc  take  his  cor- 


1  Cox,  C.  C.  Appendix,  p.  vii. 


CHAP.  XXXIX.]  PERJURY.  431 

poral  oath,  upon  the  Holy  Gospel  of  God,  before  the  said 
Sir  Robert  Mounsey  Rolfe,  Knight,  then  and  there  being  such 
baron  as  aforesiaid,  that  the  evidence  which  the  said  T.  P. 
should  give  to  the  said  court  there,  and  to  the  said  jury  so 
sworn,  between  the  parties  as  aforesaid,  touching  the  matters 
then  in  question  on  the  said  issues,  should  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth,  the  said  Sir  Robert 
Mounsey  Rolfe,  Knight,  then  and  there  having  sufficient  and 
competent  power  and  authority  to  administer  the  said  oath 
to  the  said  T.  P.  in  that  behalf.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that,  at  and 
before  the  several  times  in  this  count  mentioned,  the  said  M. 
B.,  the  defendant  in  the  said  cause  had  made  his  certain 
promissory  note  in  writing,  bearing  date  a  certain  day  and 
year  therein  mentioned,  to  \vit,  the  first  day  of  March  in  the 

year  of  our  Lord ,  and  thereby  promised  to  pay  to  the 

order  of  the  said  T.  P.  forty-nine  pounds,  etc.,  ten  shillings, 
three  months  after  date  thereof,  and  the  said  M.  B.  delivered 
the  said  note  to  the  said  T.  P. ;  and  the  said  T.  P.,  afterwards, 
to  wit,  on  the  first  day  of  May  in  the  year  last  aforesaid, 
indorsed  the  said  promissory  note  to  the  said  A.  H.,  for  a 
valuable  consideration,  to  wit,  for  fifty  pounds,  money  then 
due  and  owing  from  the  said  T.  P.  to  the  said  A.  H.,  for  pro- 
fessional business  theretofore  done,  performed,  and  transacted 
by  the  said  A.  H.  for  the  said  T.  P.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the 
said  M.  B.  pleaded  among  other  pleas  to  the  said  action  so 
pending  against  him  at  the  suit  of  the  said  A.  H.  and  herein- 
before mentioned  and  referred  to,  that  the  said  promissory 
note,  to  recover  the  amount  whereof  the  said  action  was 
brought,  was  made  by  him,  and  that  he  delivered  the  same 
to  the  said  T.  P.  for  the  joint  accommodation  of  the  said  M. 
B.  and  the  said  T.  P.,  and  that  there  never  was  any  value  or 
consideration  for  the  making  the  said  note  or  for  the  delivery 
of  the  same  to  the  said  T.  P.  or  for  the  said  T.  P.,  being  the 
holder  thereof  or  for  the  payment  by  the  said  M.  B.  of  the 
amount  thereof,  or  of  any  part  thereof,  of  all  w^hich  the  said  A. 
H.  before  and  at  the  time  of  the  indorsement  of  the  said  note 


432  PERJURY.  [chap.  XXXIX. 

to  him,  had  notice ;  and  that  the  said  T.  P.  indorsed  the  said 
note  to  the  said  A.  H.,  in  consideration  of  a  promise  made 
by  the  said  A.  H.  to  the  said  T.  P.,  that  the  said  A.  H.  then 
would  discount  the  said  promissory  note,  and  advance  money 
thereon,  and  upon  no  other  consideration ;  and  that  the  said 
A.  H.  never  did  discount  the  said  promissory  note,  or  advance 
any  money  thereon,  but,  on  the  contrary  thereof,  wholly 
neglected  and  refused  so  to  do,  and  there  never  was  any 
value  or  consideration  for  the  indorsement  of  the  said  note  by 
the  said  T.  P.  to  the  said  A.  H.,  and  the  said  A.  H.  always 
held,  and  still  holds,  the  said  note,  without  value  or  considera- 
tion, and  in  violation  of  his  said  promise,  and  contrary  to  the 
terms  and  purpose  for  which  the  same  was  so  indorsed  to  him 
as  aforesaid  ;  and  the  said  A.  H.,  for  replication  to  the  said 
plea  so  pleaded  as  last  aforesaid,  said  that  the  said  M.  B.,  of 
his  own  wrong,  and  without  the  cause  by  him  in  the  said  plea 
alleged,  broke  his  promise  in  the  said  first  count  of  the 
declaration  mentioned,  and  to  which  the  said  plea  was 
pleaded,  and  this  the  said  A.  H.  prayed  might  be  inquired  of 
by  the  country ;  and  the  said  M.  B.  did  the  like,  which  was 
one  of  the  issues  which  so  then  and  there  came  on  to  be 
tried,  and  was  then  and  there  tried  as  aforesaid.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  at  and  upon  the  said  trial  of  the  said  issues  so  joined  as 
aforesaid  between  the  parties  aforesaid,  it  then  and  there 
became  and  was  a  material  question,  whether  the  said  A.  H. 
ever  did  promise  the  said  T.  P.  to  discount  the  said  promis- 
sory note;  and  whether  the  said  A.  H.  ever  did  promise  the 
said  T.  P.  to  advance  money  upon  the  said  promissory  note ; 
and  also  whether  the  said  T.  P.  indorsed  and  delivered  the 
said  promissory  note  to  the  said  A.  H.  on  the  first  day  of 

March  in  the  year  of  our  Lord ,  or  thereabouts ;  and  also 

at  what  time  and  when  the  said  T.  P.  did  in  fact  indorse  and 
deliver  Ihc  said  promissory  note  to  the  said  A.  II.;  and 
wliether  the  said  promissory  note  was  not,  in  ])oint  of  fact, 
indorsed  and  delivertMl  l)y  tlie  said  T.  P.  to  tlu;  said  A.  H. 
some  rmic  in  tlir  early  part  of  the  month  of  May  in  the  year 
of  our  Lord ;  and  whrlhcr  the  said  T.  P.  ever  said  that 


CHAP.  XXXIX.]  PERJURY.  433 

the  said  M.  B.  ought  to  pay  the  amount  mentioned  in  the 
said  note  to  the  said  A.  IL,  and  the  said  A.  H.  ought  to  make 
him ;  and  whether  the  said  T.  P.  said  that  the  said  T.  P.  in- 
dorsed the  said  promissory  note  to  the  said  A.  H.,  on  account 
of  business  done  by  the  said  A.  H.  for  the  said  T.  P.  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  thereupon,  at  and  upon  such  trial  as  aforesaid,  the 
said  T.  P.  being  so  produced  and  sworn  as  aforesaid,  devising 
and  wickedly  intending  to  cause  and  procure  a  verdict  to  pass 
against  the  said  A.  H.,  and  for  the  said  M.  B.,  on  the  trial  of 
the  said  issues,  did  then  and  there,  to  wit,  on  the  said  four- 
teenth day  of  January,  at  the  parish  aforesaid,  in  the  liberty 
and  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
Central  Criminal  Court  aforesaid,  before  the  said  Sir  Robert 
Mounsey  Rolfe,  Knight,  then  and  there  being  such  Baron  as 
aforesaid,  falsely,  maliciously,  wilfully,  wickedly,  and  cor- 
ruptly, and  by  his  own  proper  act  and  consent,  upon  his  oath 
so  taken  as  aforesaid,  then  and  there  say,  depose,  swear,  and 
give  evidence,  amongst  other  things,  to  the  said  court,  and  to 
the  jurors  of  the  said  jury  so  sworn,  between  the  said  parties  as 
aforesaid,  in  substance  and  to  the  effect  as  follows,  that  is  to 
say :  That  the  said  T.  P.,  went  to  the  said  A.  H.  on  the  jfirst 

day  of  March  in  the  year  of  our  Lord ,  or  thereabouts. 

That  the  said  A.  H.  promised  the  said  T.  P.  that  if  the  said 
T.  P.  would  get  a  bill  from  the  said  M.  B.,  and  bring  it  in 
the  morning,  the  said  A.  H.  would  discount  it.  That  the 
said  T.  P.  took  the  said  note  (meaning  the  promissory  note 
aforesaid)  to  the  said  A.  H.  That  the  said  A.  H.  promised 
the  said  T.  P.  that  the  said  A.  H.  would  discount  the  said 
promissory  note  (meaning  that  at  the  time  the  said  T.  P.  took 
the  said  promissory  note  to  the  said  A.  H.,  the  said  A.  H. 
promised  the  said  T.  P.  that  the  said  A.  H.  would  dis- 
count the  said  promissory  note).  That  the  said  A.  H.  told 
the  said  T.  P.  that  if  the  said  T.  P.  would  call  in  the 
morning,  the  said  A.  H.  would  give  the  said  T.  P.  the  cash 
(meaning  the  cash  for  and  in  respect  of  discounting  the 
note).  That  the  said  T.  P.  took  the  said  promissory  note 
to  the  said  A.  H.  on  the  first  day  of  March  in  the  year 

37 


434  PERJURY.  [chap.  XXXIX. 

of  our  Lord  ,  or  thereabouts,  or  within  a  day  or  two. 

That  the  said  T.  P.  never  said  that  the  said  M.  B.  ouoht 
to  pay  the  said  promissory  note  (meaning  that  he  never 
said  that  the  said  M.  B.  ought  to  pay  to  the  said  A.  H. 
the  amount  mentioned  in  the  said  note).  That  the  said 
T.  P.  never  said  that  the  said  A.  H.  ought  to  make  him 
(meaning  that  the  said  T.  P.  never  said  that  the  said  A. 
H.  ought  to  make  the  said  M.  B.  pay  to  the  said  A.  H.  the 
amount  mentioned  in  the  said  note).  That  the  said  T. 
P.  never  said  that  the  said  T.  P.  gave  the  bill  to  the  said 
A.  H.  on  account  of  business  done  (meaning  that  the  said 
T.  P.  never  said  that  the  said  T.  P.  indorsed  the  said 
promisissory  note  to  the  said  A.  H.  on  account  of  business 
done  by  the  said  A.  H.  for  the  said  T.  P.).  And  whereas, 
in  truth  and  in  fact,  the  said  A.  H.  did  not  promise  the 
said  T.  P.  that  if  the  said  T.  P.  would  get  a  bill  from 
the  said  M.  B.  and  bring  it  in  the  morning,  the  said  A.  H. 
would  discount  it.  And  whereas,  in  truth  and  in  fact,  the 
said  A.  H,  did  not  at  the  time  the  said  T.  P.  took  the  said 
promissory  note  to  the  said  A.  H.,  or  at  any  time  promise  the 
said  T.  P.  that  the  said  A.  H.  would  discount  the  said 
promissory  note  aforesaid ;  and  whereas,  in  truth  and  in  fact, 
the  said  A.  H.  did  not  tell  the  said  T.  P.  that  if  the  said 
T.  P.  would  call  in  the  morning,  the  said  A.  PL,  would  give 
the  said  T.  P.  the  cash  for  and  in  respect  of  discounting 
the  said  promissory  note ;  and  whereas,  in  truth  and  in  fact, 
the  said  T.  P.  did  not  indorse  the  said  promissory  note  to  the 
said  A.  H.  on  the  first  day  of  March  in  the  year  of  our  Lord 

,  or  thereabouts,  or  within  a  day  or  two  ;  and  whereas,  in 

truth  and  in  fact,  the  said  T.  P.  indorsed  the  said  promissory 
note  to  the  said  A.  H.  some  time  in  the  early  part  of  the 

month  of  May  in  the  year  of  our  Lord :  and  whereas,  in 

truth  and  in  fact,  the  said  T.  P.  did  say,  and  had  then  said, 
that  the  said  M.  B.  ought  to  pay  the  amount  mentioned  in 
the  said  note  to  the  said  A.  II.,  and  that  the  said  A.  H.  ought 
to  make  him:  and  whereas,  in  Iruih  and  in  fact,  tlie  said  T. 
P.  did  say,  and  had  tlit-n  said,  (hat  the  said  M.  B.  ought  to 
pay  to  the  said  A.  II.  the  amount  mentioned  in  the  said  note  ; 


CHAP.  XXXIX.]  PERJURY.  435 

and  that  the  said  A.  H.  ought  to  make  the  said  M.  B.  pay  to 
the  said  A.  H.  the  amount  mentioned  in  the  said  note ;  and 
whereas,  in  truth  and  fact,  the  said  T.  P.  did  say,  and  had 
then  said,  that  the  said  T.  P.  gave  the  bill  to  the  said  A. 
H.  on  account  of  business  done ;  and  whereas,  in  truth  and 
in  fact,  the  said  T.  P.  did  say,  and  had  then  said,  that  he,  the 
said  T.  P.,  indorsed  the  said  promissory  note  to  the  said  A. 
H.  on  account  of  business  done  by  the  said  A.  H.  for  the  said 
T.  P.  And  so  the  jurors  first  aforesaid,  upon  their  oath  afore- 
said, do  say  that  the  said  T.  P.,  at  and  upon  the  said  trial  of 
the  said  issues,  on  the  said  day  and  year  first  aforesaid,  at 
the  parish  aforesaid,  within  the  liberty  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  Central 
Criminal  Court,  before  the  said  Sir  Robert  Mounsey  Rolfe, 
Knight,  Baron  as  aforesaid,  so  as  aforesaid  having  sufficient 
power  and  authority  to  administer  the  said  oath  to  the  said 
T.  P.  in  that  behalf,  by  his  own  proper  act  and  consent,  and  of 
his  own  most  wicked  and  corrupt  mind,  in  manner  and  form 
aforesaid,  did  falsely,  wickedly,  wilfully,  and  corruptly,  upon 
his  oath  aforesaid,  commit  wilful  and  corrupt  perjury ;  to  the 
evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace,  etc. 

6.  For  perjury  before  a  grand-jury?- 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore,  to 
wit,  at  the  Court  of  Common  Pleas,  begun  and  holden  at 
Cambridge,  within  and  for  the  county  of  Middlesex,  on  the 

second  Monday  of  February  in  the  year  of  our  Lord , 

by  Charles  H.  Warren,  Esquire,  then  one  of  the  justices  of 
said  court,  before  the  grand-jurors  of  said  Commonwealth  for 
the  county  of  Middlesex  aforesaid,  which  said  grand-jurors 
were  then  and  there  at  said  court  duly  and  legally  convened, 


*  This  count  is  taken  from  the  indictment  in  the  case  of  Commonwealth  v. 
Parker,  Mass.  C.  C.  Pleas,  Middlesex,  June  T.  1849.  It  is  valuable  as  a  pre- 
cedent that  has  been  subjected  to  a  severe  examination  by  eminent  counsel. 
See  Commonwealth  v.  Parker,  2  Cushing,  212. 


436  PERJURY.  [chap,  xxxix. 

having  then  and  there  been  duly  and  legally  impanelled  and 
sworn  according  to  the  provisions  of  law  in  that  behalf,  a  cer- 
tain complaint  was  then  and  there  made  and  presented  against 
one  George  F.  Farley,  for  the  crime  of  perjury,  and  that  in 
the  investigation  and  hearing  of  said  complaint  before  said 
grand-jurors  so  impanelled  and  sworn  as  aforesaid,  Samuel 
Parker,  late  of  Chelmsford  in  the  county  of  Middlesex, 
Esquire,  did  then  and  there  personally  appear  as  a  witness  in 
behalf  of  said  complaint ;  and  that  the  said  Samuel  Parker 
being  then  and  there  before  said  grand-jurors  as  such  witness 
as  aforesaid  was  then  and  there  duly  and  legally  sworn  be- 
fore said  grand-jurors  in  their  presence,  and  in  the  presence 
of  the  district  attorney  then  in  attendance,  by  Rufus  Fisk, 
foreman  of  said  grand-jurors,  the  said  Fisk,  such  foreman  as 
aforesaid,  being  then  and  there  duly  and  legally  authorized 
and  empowered  to  administer  said  oath,  and  that  the  said 
Samuel  Parker  did  then  and  there  take  his  corporal  oath 
before  said  grand -jurors,  that  the  evidence  the  said  Samuel 
Parker  should  give  them  in  all  matters  and  things  which 
should  come  before  them  should  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth ;  and  that  then  and  there  it  became 
and  was  material  in  the  investigation  of  said  complaint  by 
and  before  said  grand-jurors  impanelled  as  aforesaid,  whether 
before  that  time  there  was  any  agreement  made  by  said 
Samuel  Parker  with  said  George  F.  Farley  to  pay  or  allow 
said  Farley  any  bonus  or  extra  interest,  that  is  to  say,  any 
sum  over  and  above  the  legal  rate  of  interest,  according  to 
the  laws  of  the  said  Commonwealth,  for  any  money  before 
that  time  loaned  by  said  Farley  to  one  Lemuel  Parker,  or  to 
said  Samuel  Parker,  or  for  any  sum  or  sums  of  money  before 
that  time  due  and  owing  from  said  Samuel  Parker  to  said 
Farley  ;  and  that  thereupon  the  said  Samuel  Parker,  being  so 
sworn  and  j)roduced  as  a  witness  as  aforesaid,  to  wit,  on  the 

seventeenth  day  of  February  in  the  year  of  our  Lord ,  at 

Cambridge  aforesaid,  in  Ihe  county  aforesaid,  and  being  then 
and  there  lawfully  rec(uir('d  to  depose  the  truth  in  relation  to 
said  complaint,  and  in  a  ])roceeding  in  a  course  of  justice,  wick- 
edly devising  and  intending  to  subvert  the  truth,  and  wrong- 


CHAP.  XXXIX.]  PERJUKY.  437 

fully  devising  and  intending  to  cause  the  said  George  F.  Farley 
to  be  indicted  and  presented  for  the  crime  of  perjury,  then  and 
there  at  and  upon  the  hearing  and  investigation  of  said  com- 
plaint, by  and  before  the  said  gi'and-jurors  impanelled  as 
aforesaid,  and  then  and  there  in  session  at  said  term  of  the 
Court  of  Common  Pleas  aforesaid,  did,  as  such  witness  as 
aforesaid,  on  his  oath  aforesaid,  falsely,  wickedly,  maliciously, 
wilfully,  and  corruptly,  and  by  his  own  proper  act  and  con- 
sent depose,  swear,  and  give  evidence  to  and  before  the  said 
grand-jurors  so  impanelled  as  aforesaid,  and  as  such  grand- 
jurors  so  hearing  the  matter  upon  the  complaint  aforesaid, 
amongst  other  things,  in  substance  and  effect  following,  that 
is  to  say,  I  (meaning  said  Samuel  Parker)  never  agreed  to 
pay  Mr.  Farley  (meaning  said  George  F.  Farley)  any  extra 
interest  whatever,  (meaning  interest  over  and  above  the  legal 
rate  of  interest,)  I  (meaning  said  Samuel  Parker)  never 
agreed  to  pay  IVIr.  Farley  (meaning  said  Farley)  any  extra 
interest  (meaning  interest  over  and  above  the  legal  rate  of 
interest)  for  any  money  before  that  time  loaned  by  Mr. 
Farley  (meaning  said  Farley)  to  Lemuel  Parker  (meaning 
said  Lemuel  Parker)  or  to  myself,  (meaning  said  Samuel 
Parker,)  or  for  any  sum  or  sums  of  money  due  and  owing 
from  myself  (meaning  said  Samuel  Parker)  to  Mr.  Farley, 
(meaning  said  Farley,)  I  (meaning  said  Samuel  Parker) 
never  agreed  to  pay  Mr.  Farley  (meaning  said  Farley)  any 
bonus  (meaning  any  sum  above  the  legal  rate  of  interest)  for 
or  on  account  of  any  loan  or  loans  of  money  to  me  (meaning 
said  Samuel  Parker)  by  Mr.  Farley,  (meaning  said  Farley,) 
or  on  account  of  any  delay  of  payment  of  moneys  due  from  me 
(meaning  said  Samuel  Parker)  to  Mr.  Farley  (meaning  said 
Farley),  I  (meaning  said  Samuel  Parker)  never  agreed  to 
pay  Mr.  Farley  (meaning  said  Farley)  any  bonus  or  extra 
interest  whatever  (meaning  any  sum  or  interest  over  and 
above  the  legal  rate  of  interest)  ;  whereas,  in  truth  and  in 
fact,  said  Samuel  Parker  did  agree  before  that  time  to  pay 
said  Farley  extra  interest,  that  is  to  say,  interest  over  and 
above  the  legal  rate  of  interest,  said  Samuel  Parker  had  agreed 
to  pay  said  Farley  extra  interest,  that  is  to  say,  interest  over 

37* 


438  PERJURY.  [chap.  XXXIX. 

and  above  the  legal  rate  of  interest,  for  certain  moneys  before 
that  time  loaned  by  said  Farley  to  said  Lemuel  Parker,  to 
wit,  on  a  certain  note,  for  the  sum  of  one  thousand  dollars, 
given  by  said  Lemuel  Parker  as  principal,  and  said  Samuel 
Parker  and  others  as  sureties  on  a  certain  note,  for  the  sum 
of  six  hundred  dollars,  given  by  said  Samuel  Parker  to  said 
Farley,  and  for  certain  other  sums  of  money  due  and  owing 
from  Samuel  Parker  to  said  Farley ;  said  Samuel  Parker  had 
agreed  to  pay  said  Farley  a  certain  bonus,  that  is  to  say,  a 
certain  sum  of  money  above  the  legal  rate  of  interest  for  and 
on  account  of  certain  loans  of  money  by  said  Farley  to  said 
Samuel  Parker,  and  for  and  on  account  of  delay  of  payment 
of  moneys  due  from  said  Parker  to  said  Farley ;  and  said 
Samuel  Parker  had  agreed  to  pay  to  said  Farley  a  bonus, 
that  is  to  say,  a  sum  above  the  legal  rate  of  interest ;  and 
had  agreed  to  pay  said  Farley  extra  interest,  that  is  to  say, 
interest  above  the  legal  rate  of  interest.  *And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
Samuel  Parker,  in  manner  and  form  last  aforesaid,  and  of  his 
own  most  corrupt  mind,  did  falsely,  wilfully,  wickedly,  and 
corruptly,  commit  wilful  and  corrupt  perjury ;  *  ^  to  the  mani- 
fest perversion  of  public  justice,  against  the  peace  of  said 
Commonwealth,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

^  The  allegation  between  the  asterisks,  "  And  so  the  jurors  aforesaid,"  etc. 
is  surplusage,  and  may  be  rejected.  Ryalls  u.  Regina,  11  Queen's  Bench, 
Rep.  781 ;  3  Cox,  C.  C.  36  ;  Rice  v.  The  Commonwealth,  12  Metcalf,  246, 
248. 


CHAPTER    XL. 


POLYGAMY/ 

1.  Indictment  for  poly g^amy.  —  Rev.  Sts.  of  Mass.  ch.  130,  §  2. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  gentleman,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  at  B.  aforesaid,  in  the  county  afore- 

said,2  was  lawfully  married  to  one  J.  N.,^  and  the  said  J.  N.  then 
and  there  had  for  his  wife  ;  and  that  the  said  C.  D.,  afterwards, 

to  wit,  on  the  first  day  of  July  in  the  year  of  our  Lord , 

with  force  and  arms,*  at  B.  aforesaid,  in  the  county  aforesaid, 
feloniously  and  unlawfully  did  marry  and  take  to  wife  one 
A.  B.,  and  to  the  said  A.  B.  was  then  and  there  married,  the 
said  C.  D.  being  then  and  there  a  married  man  and  the  law- 
ful husband  of  the  said  J.  N.,  and  the  said  J.  N.,  his  former 
wife,  being  then  ^  alive,^  and  the  said  C.  D.  never  having  been 

^  This  offence  consists  in  having  a  plurality  of  wives  at  the  same  time.  It 
is  often  termed, bigamy;  which,  in  its  proper  signification,  only  means  having 
had  two  wives  in  succession.     3  Greenleaf  on  Ev.  §  203. 

*  It  is  sufficient  to  allege  a  prior  marriage,  without  stating  the  place  where 
the  fint  marriage  took  place.     The  State  v.  Bray,  13  Iredell,  289. 

*  The  description  of  the  person,  though  unnecessarily  stated,  must  be 
strictly  proved  as  alleged.  Thus,  where  the  person  was  described  as  a 
"  widow,"  but  it  appeared  in  evidence  that  she  was  in  fact  and  by  reputation 
a  single  woman,  the  variance  was  held  fatal.  Rex  v.  Deeley,  1  Moody,  C.  C. 
303;  4  Carrington  &  Payne,  579. 

*  Not  necessary.     The  State  v.  Kean,  10  New  Hampshire,  347. 

*  It  is  sufficient  to  allege  that  the  wife  was  then  living,  without  laying  any 
venue.     1  Starkie,  Crim.  PI.  (London  ed.  1828),  67. 

*  An  allegation  that  the  defendant  married  again,  "  the  said  J.  N.,  his  for- 
mer wife,  being  then  alive,"  sufficiently  charges  the  offence,  without  any 
further  averment  that  he  was  still  married  to  J.  N.  when  the  offence  was 
committed.     Murray  v.  Regina,  7  Queen's  Bench  Rep.  700. 


440  POLYGAMY.  [chap.  XL. 

legally  divorced  from  the  bonds  of  matrimony  from  the  said 
J.  N.,  and,  here  proceed  to  negative  the  excepted  cases  in  the 
following'  section;^  whereby  and  by  force  of  the  statute  in 
such  case  made  and  provided,  the  said  C.  D.  is  deemed  to 
have  committed  the  crime  of  polygamy.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C. 
D.,  in  manner  and  form  aforesaid,  on  the  first  day  of  July  in 

the  year  of  our  Lord  ,  at  B.  aforesaid,  in  the  county 

aforesaid,  did  commit  the  crime  of  polygamy ;  against  the 
peace,  etc.,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 


2.  For  polygamy,  hy  continuing  to  cohabit  ivith  a  second  wife 
in  this  State.  — 'Rew.  Sts.  of  Mass.  ch.  130,  §  2.2 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

at  B.  in  the  county  of  S.,  was  lawfully  married  to  one  A.  B., 
and  the  said  A.  B.  then  and  there  had  and  took  for  his  law- 
ful wife,  and  that  afterwards,  to  wit,  on  the  first  day  of  July 

in  the  year  of  our  Lord ,  at  B.  in  the  county  of  S.,  the 

said  C.  D.  feloniously  and  unlawfully  did  marry  and  take  to 
wife  one  E.  F.,  the  said  C.  D.  then  and  there  being  married 
and  the  lawful  husband  of  the  said  A.  B.,  the  said  A.  B.  then 
being  his  former  wife  and  living ;  and  the  said  C.  D.  never 
having  been  legally  divorced  from  the  said  A.  B. ;  and  that 
the  said  C.  D.  afterwards  did  cohabit  and  continue  to  co- 
habit with  the  said  E.  F.,  as  his  second  wife  in  this  State, 
to  wit,  at  B.  in  the  county  of  S.,  and  Commonwealth  afore- 
said, for  a  long  space  of  time,  to  wit,  for  the  space  of  sLx 
months; 2  and,  here  proceed  to  negative  the  excepted  cases 
in  the  following  section.  Whereby,  and  by  force  of  the 
statute  in   such   case   made   and  provided,  the  said   C.  D., 


>  Sec  The  State  v.  Talmcr,  18  Vermont,  570. 

"  Sec  Commonwealth  v.  Hunt,  4  Cushing,  49  ;  Ante,  p.  352,  note  2. 
•  This  is  a  sufncicnt  Btatenicnt  of  tlic  time  when  the  ofTuncc  was  com- 
mitted.    Commonwealth  v.  Bradley,  2  Cushing,  553. 


CHAP.  XL.]  •      POLYGAMY.  441 

is  deemed  guilty  of  the  crime  of  polygamy.  And  so  the 
jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that  the 
said  C.  D.  in  manner  and  form  aforesaid,  at,  etc.,  on,  etc., 
did  commit  the  crime  of  polygamy ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


CHAPTER    XLI. 


EAPE. 


An  indictment  for  this  offence  in  the  first  place  usually 
charges,  that  the  prisoner  did  "  violently  and  feloniously  as- 
sault "  the  party  aggrieved ;  but  it  is  not  necessary  that  there 
should  be  an  express  allegation  of  an  assault.^  The  main 
averment  is,  that  he  did  "  against  her  will,  feloniously  ravish 
and  carnally  know  her ; "  the  averment  of  the  act  being  done 
"  against  her  will "  is  material  and  necessary  for  the  purpose 
of  negativing  her  consent  to  it.^  The  word  "  ravish  "  is  a 
technical  one,  which  is  indispensable  for  the  purpose  of  denot- 
ing the  particular  offence,  and  the  force  which  is  used  in 
committing  it.  The  words  "  carnally  know  "  are  also  an  ap- 
propriate description  of  the  crime;  although  it  has  been 
doubted  whether  they  are  essential,  the  word  "ravish"  being 
considered  to  be  of  the  same  import,  and  therefore  to  supply 
them.^ 


'  Regina  v.  Allen,  2  Moody,  C.  C.  179 ;  9  Carrington  &  Payne,  520.  And 
see  Rex  v.  Pelfryman,  2  Leach,  C.  C.  (4th  London  ed.),  563.  See  ante,  p. 
253. 

'  1  Gabbett,  Crim.  Law,  833;  2  Deacon,  Crim.  Law,  1085;  1  Starkie, 
Crim.  Fl.  (London  ed.  1828),  77  ;  The  State  v.  Jim,  2  Devercaux,  142. 
Oniira,  Ilarnian  v.  The  State,  12  Sergeant  &  Rawle,  69.  And  sec  Regina  r. 
Allen,  2  Moo<ly,  C.  C.  179,  180. 

'  1  (iabbctt,  Crim.  Law,  833;  2  Deacon,  Crim.  Law,  1085;  1  Hale,  P.  C. 
C28;  1  Starkie,  Crim.  PI.  (London  ed.  1828),  77;  2  Hawkins,  P.  C.  ch. 
23,  §  79.  In  England,  it  has  been  held,  that  the  omission  of  the  "carnalitcr 
cognovit,"  vitiates  the  indictment  on  dcniurrcr,  but  not,  as  it  seems,  after 
verdict.     Re.x.  v.  Warren,  1  Russell,  Crim.  Law.  680. 


CHAP.  XLI.]  KAPE.  443 


1.  Indictment  for  rape} 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  A.  B.,  violently  and 
feloniously  did  make  an  assault,  and  her  the  said  A.  B., 
then  and  there,  violently  and  against  her  will,  feloniously  did 
ravish  and  carnally  know ;  ^  against  the  peace  of  said  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

2.  Another  precedent  for  the  same.  —  Mass.   St.   1852,   ch. 

259,  §  2.3 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord  ,  with  force  and  arms,  at  B.,  in  the 

county  of  S.,  in  and  upon  one  E.  F.,  a  female  of  the  age  of 


*  Archbold,  Crlm.  PI.  (London  ed.  1853),  562.  An  indictment  is  good, 
•which  charges  that  A.  committed  a  rape,  and  that  B.  was  present,  aiding 
and  abetting  him  in  the  commission  of  the  felony.  For  the  party  aiding  may 
be  charged  either,  as  he  was  in  law,  a  principal  in  the  first  degree,  or,  as  he 
was  in  fact,  a  principal  in  the  second  degree.  Regina  v.  Crisham,  Cramp- 
ton  &  Marshman,  187.  In  Maryland,  a  count  charging  a  rape,  may  be 
joined  with  another  count  charging  an  assault  with  intent  to  commit  a  rape. 
The  State  v.  Sutton,  4  Gill,  494  ;  Burk  v.  The  State,  2  Harris  &  Johnson, 
426.  So  in  Pennsylvania.  Harman  v.  The  Commonwealth,  12  Sergeant  & 
Kawle,  69.     See  Wash  v.  The  State,  14  Smedes  &  Marshall,  120. 

^  This  indictment  charges  with  sufficient  certainty  that  A.  B.  is  a  female. 
The  State  v.  Farmer,  4  Iredell,  224 ;  The  State  v.  Terry,  4  Devereaux  & 
Battle,  152. 

*  Under  the  Rev.  Sts.  ch.  137,  §  11,  a  party  indicted  for  a  rape,  alleged  to 
have  been  committed  upon  his  own  daughter,  may  be  convicted  of  incest,  if 
the  jury  find  the  criminal  connection,  but  that  it  was  not  by  force  and 
against  the  will  of  the  daughter.  Commonwealth  v.  Goodhue,  2  Metealf, 
674. 


444  KAPE.  [chap.  xli. 

ten  years  and  more,  to  wit,  of  the  age  of  twenty  years,^  vio- 
lently and  feloniously  did  make  an  assault ;  and  her,  the  said  E. 
F.,  then  and  there,  by  force  and  against  her  will,  violently  and 
feloniously  did  ravish  and  carnally  know ;  against  the  peace 
of  said  Commonwealth,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 


3.  For  carnally  knowing  and  abusing  a  ivoman  child  under  the 
age  of  ten  years. —  Mass.  St.  1852,  ch.  259,  §  2. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  in  and  upon  one  E.  F.,  a  woman 
child,^  under  the  age  of  ten  years,  to  wit,  of  the  age  of  nine 
years,  feloniously  did  make  an  assault,  and  her,  the  said  E.  F., 
then  and  there  feloniously  did  unlawfully  and  carnally  know 
and  abuse ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 


^  In  North  Carolina,  it  is  not  necessary  to  allege  that  the  female  is  of  the 
age  of  ten  years.-    The  State  v.  Farmer,  4  Iredell,  224. 

*  An  indictment  on  a  statute  for  carnally  knowing  and  abusing  a  female 
chihl,  ■which  charges  that  the  rape  was  committed  "  in  and  upon  one  M.  C, 
an  infant  under  the  age  of  ten  years,"  etc.,  and  her,  the  said  M.  C,  feloni- 
ously did  unlawfully  and  carnally  know  and  abuse,  etc.,  is  sufficient,  without 
describing  the  infant  as  "  a  female  child."  The  State  i'.  Terry,  4  Devereaux 
&  Battle,  152.     See  Commonwealth  v.  Bennett,  2  Virginia  Cases,  235. 


CHAPTER     XLII. 


RECEIVING   STOLEN   GOODS. 


It  is  necessary  that  the  goods  received  shall  appear  to  be 
the  very  goods  stolen,  or  part  thereof.  A.  and  B.  were 
indicted,  A.  for  stealing  six  bank-notes  of  XlOO  each,  and  B. 
for  receiving  "  the  said  notes."  A.  stole  the  notes,  changed 
them  into  notes  of  <£20  each,  some  of  which  he  gave  to  B. ; 
and  it  was  held,  that  B.  could  not  be  convicted,  for  he  did  not 
receive  the  notes  that  were  stolen.^  Therefore,  if  the  goods 
stolen  have  been  altered  between  the  time  of  the  laraeny  and 
that  of  the  receipt,  so  as  to  pass  under  a  new  denomination, 
the  indictment  should  correspond  with  the  fact.^  Yet,  where 
the  indictment  charged  the  principal  with  stealing  one  live 
sheep,  the  goods,  etc.,  of  J.  L.,  and  the  accessory  with  receiv- 
ing "  twenty  pounds  of  mutton,  part  of  the  goods,  etc.,  so  as 
aforesaid  feloniously  stolen,  etc.,"  the  conviction  was  held  to 
be  proper ;  though  the  thing  received  passed  under  a  different 
denomination  from  that  which  was  stolen.^ 

As  the  guilty  knowledge  is  the  gist  of  this  offence,  it  is 
obviously  essential  that  the  averment  of  it  should  be  coiTectly 
made.  And,  therefore,  where  in  an  indictment  against  a 
receiver  who  was  tried  with  the  principal,  the  averment  was, 
"  knowing  the  same  to  have  stolen,"  omitting  the  word 
"  been,"  the  judges  thought  the  indictment  bad.*     And  where 


1  Rex  V.  "Walkley,  4  Carrlngton  &  Payne,  132. 

*  Arclibold,  Crim.  PI.  (London  ed.  1853),  354. 
s  Rex  V.  Cowell,  2  East,  P.  C.  617,  781. 

*  Rex  V.  Kernon,  2  Russell,  Crim.  Law,  259. 

38 


446  RECEIVING   STOLEN    GOODS.  [CHAP.  XLII. 

an  indictment  charged  the  defendant,  by  the  name  of  "  Fran- 
cis Morris,"  with  receiving  stolen  goods,  "  the  said  Thomas 
Morris  well  knowing,"  etc. ;  it  was  holden  that  the  words, 
"  the  said  Thomas  Morris,"  might  be  rejected  as  surplusage ; 
for  the  allegation  of  knowledge  would  then  be  perfectly  con- 
sistent with  the  preceding  matter.^  In  a  very  recent  case,  a 
count  alleged  that  the  prisoner  received  the  goods  of  A.  B., 
"  he,  the  said  A.  B.  then  knowing  them  to  have  been  stolen." 
Upon  motion  in  arrest  of  judgment,  the  count  was  held  to  be 
fatally  defective  for  the  want  of  a  scienter?' 

Although  the  common  form  of  the  indictment  is  to  state 
the  fact  of  stealing  the  goods  by  the  principal,  and  the  receipt 
of  them  by  the  receiver,  "  he  then  and  there  well  knowing  the 
said  goods  and  chattels  to  have  been  feloniously  stolen,"  etc., 
yet,  where  the  indictment  was  for  knowingly  receiving  goods 
stolen  by  persons  unknown,  it  was  objected  to  as  insufficient, 
in  not  ascertaining  the  principal  thief.  But  the  indictment 
was  held  to  be  good  ;  for  the  great  view  of  the  statute  is  to 
reach  that  receivers,  where  the  principal  thieves  cannot  easily 
be  discovered.^  Where,  however,  the  name  of  the  principal 
is  known,  it  is  proper  to  state  it  according  to  the  truth.* 

It  is  necessary  to  observe  this  distinction  in  the  form  of  the 
indictment  for  this  offence.  Where  the  principal  and  receiver 
are  indicted  jointly,  the  receiver  is  charged  with  receiving  the 
goods  and  chattels  "  so  as  aforesaid  feloniously  stolen,"  etc.,^ 


^  Rex  V.  Morris,  1  Leach,  C.  C.  (4tla  London  ed.),  109.  See  also  Regina 
V.  Crespin,  11  Queen's  Bencli  Rep.  913  ;  ante,  p.  39. 

*  Re^^ina  v.  Larkin,  6  Cox,  C.  C.  377  ;  26  Eng.  Law  and  Eq.  Rep.  572, 
(1854): 

^  Rex  V.  Thomas,  2  East,  P.  C.  781.  An  averment  that  the  goods  were 
stolen  hy  "  a  certain  person  to  the  jurors  unknown,"  will  be  supported  by 
proof  tliat  the  name  of  the  person  could  not  be  ascertained  by  any  reasonable 
diligence.     Regina  v.  Cam])l)o]!,  1  Carrington  &  Kirwan,  82. 

*  Sec  Rex  i-.  Walker,  3  Campbell,  2G 1 ;  Rex  v.  Elsworthy,  1  Lewin,  C.  C. 
117;  Rex  V.  Rush,  Russell  &  Ryan,  C.  C.  372. 

'  Jn  a  very  recent  case,  in  England,  the  indictment,  in  the  first  count, 
charged  the  prisoner  with  larcenj-,  on  Avhich  llu;  jury  found  a  verdict  of  not 
guilty  ;  in  a  subsequent  count,  the  prisoner  was  charged  with  having  received 


CUAP.  XLII.]         '        RECEIVING   STOLEN    GOODS.  447 

but  in  a  substantive  felony  the  allegation  is,  "  goods  and  chat- 
tels before  then  feloniously  stolen  did  receive,"  without  stat- 
ing by  whom  the  felony  was  committed.^ 

With  respect  to  the  form  of  the  indictment,  it  is  further  to 
be  observed,  that  in  the  case  of  Rex  v.  Galloway,  which  was 
tried  at  the  Old  JBailey,  and  referred  by  the  recorder  to  the 
judges,  it  was  decided  by  them,  unanimously,  that  it  was  no 
objection,  in  point  of  law,  that  an  indictment  charges  pris- 
oners, in  one  count,  as  principals  in  stealing  the  goods,  and  in 
another  as  receivers ;  but  the  judges  were  equally  divided  on 
the  question,  whether  the  prosecutor  should  not  have  been  put 
to  his  election  ;  and,  thereupon,  they  all  agreed  that  directions 
should  be  given  to  the  respective  clerks,  not,  in  future,  to  put 
both  charges  in  the  'same  indictment.^     In  this  country  it  has 


the  article  "  so  as  aforesaid  feloniously  stolen,"  on  which  the  jury  found  a 
verdict  of  guilty.  It  was  held,  that  there  was  no  repugnancy,  for  that, 
although  the  word  "aforesaid"  in  a  subsequent  count  virtually  incorporates 
all  the  necessary  averments  as  to  time  and  place  in  that  count,  the  words 
"  so  as  aforesaid  feloniously  stolen,"  did  not  necessarily  mean  that  the  article 
had  been  stolen  by  the  person  named  in  the  first  count,  but  only  that  it  had 
before  then  been  feloniously  stolen  by  some  person.  Regina  v.  Craddock,  2 
Denison,  C.  C.  31 ;  1  Temple  &  Mew,  C.  C.  361  ;  1  Eng.  Law  and  Eq. 
Rep.  563,  (1850).  In  Rex  v.  Woolford,  1  Moody  &  Robinson,  384,  it  was 
ruled,  that  if  it  be  alleged  in  the  indictment  that  the  principal  felony  was 
committed  by  A.  B.,  it  must  be  proved  that  A.  B.  committed  the  felony, 
otherwise  the  receiver  must  be  acquitted. 

^  Rex  V.  Jervis,  6  Carrington  &  Payne,  156  ;  The  State  v.  Murphy,  6  Ala- 
bama, 845 ;  Swaggerty  v.  The  State,  9  Yerger,  338.  An  indictment  charg- 
ing that  a  certain  evil-disposed  person  feloniously  stole  certain  goods,  and 
that  C.  D.  and  E.  F.  feloniously  received  the  said  goods,  knowing  them  to  be 
stolen,  was  holden  good  against  the  receivers,  as  for  a  substantive  felony. 
Regina  v.  Caspar,  2  Moody,  C.  C.  101 ;  9  Carrington  &  Payne,  289. 

^  1  Moody,  C.  C.  234,  (1829)  ;  Rex  v.  Madden,  1  Moody,  C.  C.  277  ;  1 
Lewin,  C.  C.  83,  (1830).  Now,  however,  in  England,  it  is  expressly  provided 
by  St.  11  &  12  Yict.  ch.  46,  §  3,  that  in  every  indictment  for  feloniously  steal- 
ing property,  it  shall  be  lawful  to  add  a  count  for  feloniously  receiving  the 
same  property,  knowing  it  to  be  stolen,  and  in  any  indictment  for  feloniously 
receiving  property,  knowing  it  to  be  stolen,  it  shall  be  lawful  to  add  a  count 
for  feloniously  stealing  the  same  property ;  and  the  prosecutor  of  such  indict- 
ment is  not  to  be  put  to  any  election,  but  the  jury  may  find  a  verdict  of 


448  RECEIVING   STOLEN   GOODS.       "  [CHAP.  XLII. 

been  held,  that  counts  for  stealing  and  receiving  stolen  goods 
may  be  joined  in  the  same  indictment,  and  the  court  will 
neither  quash  the  indictment,  nor  compel  the  prosecutor  to 
elect  upon  which  count  he  will  proceed.^  A  receiver  may 
be  indicted  as  an  accessory  in  one  count,  and  for  a  sub- 
stantive felony  in  another  count ;  and  although,  in  his  discre- 
tion, the  judge  may  put  the  prosecutor  to  his  election,  he  will 
not  do  so  whenever  it  is  clear  that  there  is  only  one  oftence, 
and  the  joinder  of  counts  cannot  prejudice  the  defendant.^ 

In  an  indictment  against  a  married  woman  for  receiving 
stolen  goods,  it  is  unnecessary  to  aver,  that  at  the  time,  she 
was  not  acting  under  the  coercion  of  her  husband.^ 

1.  Indictment  against  a  receiver  of  stolen  goods,  as  for  a  sub- 
stantive felony. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  one  gold  watch,  of  the  value  of 
one  hundred  dollars,  of  the  goods  and  chattels  of  one  J.  N., 
before  then  feloniously  stolen,  taken,  and  carried  away,  feloni- 
ously did  receive  and  have,  the  said  C.  D.  then  and  there 
well  knowing  the  said  goods  and  chattels  to  have  been  feloni- 
ously stolen,  taken,  and  carried  away  ;  against  the  peace,  etc., 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 


guilty  on  eitlicr  count,  against  all  or  any  of  the  persons  charged.  Under 
this  statute  it  has  been  held,  that  where  the  indictment  contains  several 
counts  for  larceny,  describing  the  goods  stolen  as  the  property  of  diiTercnt 
persons,  it  may  contain  the  like  number  of  counts,  "with  the  same  variations, 
for  receiving  the  same  goods,  llegina  v.  Beeton,  2  Carringtou  &  Kirwan, 
900  ;  1  Denison,  C.  C.  41-1 ;  1  Temple  &  Mew,  C.  C.  87, 

*  Hampton  i'.  TIic  State,  8  Humphreys,  CD. 

*  llegina  v.  Pulham,  9  Carrington  &  Payne,  281 ;  Rex  v.  Austin,  7  Car- 
rin"ton  &  Payne,  790  ;  Rex  v.  Ilartall,  7  Carrington  &  Payne,  475  ;  Re.\  v. 
"\Vii(M"li'r,  7  Carrington  &  Payne,  1  70. 

*  The  State  v.  Nelson,  29  Maine,  329. 


CHAP.  XLII.]  RECEIVING   STOLEN   GOODS.  449 


2.  Against  a  receiver  of  stolen  goods.  —  Rev.  Sts.  of  Mass. 
ch.  126,  §  20.1     . 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,^  one  silver  tankard,  of  the  value  of  fifty  dollars, 

^  The  Rev.  Sts.  of  Mass.  ch.  12G,  §  20,  enact,  that  "Every  person  Tvho 
shall  buy,  receive,  or  aid  in  the  concealment  of  any  stolen  money,  goods,  or 
'property,  knowing  the  same  to  have  been  stolen,  shall  be  punished,"  etc. 
This  section  describes  only  one  offence,  which  may  be  committed  either  by 
buying,  receiving,  or  aiding  in  the  concealment  of  stolen  goods ;  and  an  in- 
dictment charc'in'i;  a  defendant  with  buying;,  receiving;  and  aidinnj  in  the 
concealment  of  such  goods,  charges  only  one  offence.  Stevens  v.  The  Com- 
monwealth, 6  Metcalf,  241.  Contra,  The  State  v.  Murphy,  6  Alabama,  845. 
Where  an  indictment  charges  a  defendant  with  receiving  various  articles  of 
stolen  jjroperty,  knowing  them  to  be  stolen,  and  specifically  describes  each 
article,  and  avers  the  value  thereof,  and  he  pleads  that  he  is  "  guilty  of 
receiving  fifty  dollars'  worth  of  said  property,  in  manner  and  form  as  set 
forth  in  the  indictment,"  no  valid  judgment  can  be  rendered  against  him  on 
such  plea.     O'Connell  v.  The  Commonwealth,  7  Metcalf,  4C0. 

"  In  Rex  V.  Stott,  as  reported  in  2  East,  P.  C.  751,  753,  780,  it  was  held, 
that  an  indictment  against  a  receiver  of  stolen  goods  need  not  allege  time 
and  place  to  the  fact  of  stealing  the  goods  ;  it  is  sufHcient  if  they  be  alleged 
to  the  fact  of  the  receipt.  But  in  a  recent  case,  Lord  Denman,  C.  J.,  said, 
"  An  objection  was  also  taken  to  the  fourth  count,  on  the  sco^'e  of  the  venue, 
a  material  fact  being  alleged  without  place.  Stott's  case,  reported  in  2 
East's  Pleas  of  the  Crown,  was  thought  to  bear  directly  on  this  doctrin^  and 
•was  not  successfully  distinguished  in  the  argument.  But  the  Master  of  the 
Crown  OfKce  has  found  the  paper  book  in  that  case,  on  which  Ashhurst,  J., 
took  his  note  of  the  argument,  conducted  by  Lord  Abinger  on  the  one  side, 
and  the  late  Mr.  Justice  Vaughan  on  the  other,  in  ]\Iichaelmas  Term,  1798. 
The  indorsement  of  that  learned  judge  intimates  that  the  case  stood  for  fur- 
ther argument.  The  prisoner  was  con\'icted  in  April,  and  then  sentenced  to 
twelve  months'  imprisonment,  more  than  half  of  which  expired  before  the 
argument ;  and  there  is  every  reason  to  suppose  that  Sir  E.  H.  East  is  mis- 
taken in  reporting  that  case  as  decided.  Indeed  he  himself  intimates,  that  if 
there  was  error  in  the  sentence,  it  might  possibly  have  been  amended  by 
being  changed  into  transportation  for  fourteen  years,  and  that  the  prisoner's 
counsel  was  aware  of  the  danger  that  might  attend  the  success  of  his  argu- 
ment.    O'Connell  v.  Regina,  7  Queen's  Bench  Rep.  17,  35,  (1843). 

38* 


450  BECEIVING   STOLEN   GOODS.  [cHAP.  XLII. 

enumerate  the  articles,  and  the  value  of  each,  of  the  goods  and 
chattels  of  one  E.  F.,  then  and  there  in  the  possession  of  the 
said  E.  F.  being  found,  feloniously  did  steal,  take,  and  carry- 
away;  against  the  peace  of  said  Commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  G.  H.  late  of,  etc.,  laborer,  afterwards, 

to  wit,  on  the  first  day  of  July  in  the  year  of  our  Lord , 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid, 
the  goods  and  chattels  aforesaid,  so  as  aforesaid  feloniously 
stolen,  taken,  and  carried  away,  feloniously  did  receive  and 
have,  and  did  then  and  there  aid  in  the  concealment  of  the 
same,  the  said  G.  H.  then  and  there  well  knowing  the  said 
goods  and  chattels  to  have  been  feloniously  stolen,  taken,  and 
carried  away;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

3.  Against  a  receiver  of  embezzled  property.  —  Mass.  St. 
1853,  ch.  184. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  F.  in  the  county  of  M.,  trader,  on  the  first  day  of  June  in 

the  year  of  our   Lord  ,  at  F.  aforesaid,  in  the  county 

aforesaid,  being  then  and  there  employed  as  clerk  of  one  J. 
N.,  the  said  C.  D.  not  being  then  and  there  an  apprentice  to 
the  iaid  J.  N.,  nor  a  person  under  the  age  of  sixteen  years, 
did,  by  virtue  of  his  said  employment,  then  and  there,  and 
whilst  he  was  so  employed  as  aforesaid,  take  into  his  posses- 
sion certain  money,  to  a  large  amount,  to  wit,  to  the  amount 
of  fifty  dollars,  of  the  moneys  of  the  said  J.  N.,  his  employer, 
and  the  said  money  then  and  there  feloniously  did  embezzle 
and  fraudulently  convert  to  iiis  own  use,  without  the  consent 
of  the  said  J.  N. ;  where])y,  and  by  force  of  the  statute  in  such 
case  made  and  j)r()vidcd,  the  said  C.  D.  is  deemed  to  have 
committed  th(?  crime  of  simple  larceny.  And  so  the  jurors 
aforesaid,  upon  their  oath  afon^said,  do  further  present,  that 
the  said  C.  D.  then  and  there,  in  manner  and  form  aforesaid, 


CHAP.  XLII.]  RECEIVING   STOLEN   GOODS.  451 

the  said  money,  the  property  of  the  said  J.  N.,  his  said  em- 
ployer, from  the  said  J.  N.  feloniously  did  steal,  take,  and 
carry  away ;  against  the  peace  of  said  Commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  G.  H.  late  of  F.  in  the  county  aforesaid, 
laborer,  afterwards,  to  wit,  on  the  first  day  of  July  in  the  year 

of  our  Lord ,  at  F.  aforesaid,  in  the  county  aforesaid,  the 

money  aforesaid,  so  as  aforesaid  feloniously  embezzled,  feloni- 
ously did  receive  and  have,  and  did  then  and  there  aid  in  con- 
cealing the  same,  the  said  G.  H.  then  and  there  well  knowing 
the  said  money  to  have  been  embezzled  as  aforesaid  ;  against 
the  peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


CHAPTER     XLIII. 


RESCUE. 

1.  Indictment  for  the  rescue  of  a  felon  from  a  constable.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  on  the  first 

day  of  June  in  the  year  of   our  Lord  ,  at   B.  in   the 

county  of  M.,  J.  S.,  then  being  one  of  the  constables  of  said 
B.,  brought  one  J.  N.  before  A.  C,  Esquire,  then  and  yet 
being  one  of  the  justices  of  the  peace  within  and  for  the 
county  aforesaid,  legally  authorized  and  duly  qualified  to  per- 
form and  discharge  the  duties  of  said  office ;  and  the  said  J. 
N.  was  then  and  there  charged  before  the  said  A.  C.  by  one 
Catherine  Hope,  spinster,  upon  the  oath  of  the  said  Catherine, 
that  the  said  J.  N.  had  then  lately  before,  violently,  and 
against  her  will,  feloniously  ravished  and  carnally  known  the 
said  Catherine ;  and  the  said  J.  N.  was  then  and  there  exam- 
ined before  the  said  A.  C,  the  justice  aforesaid,  touching  the 
said  offence  so  to  him  charged  as  aforesaid ;  upon  which  the 
said  A.  C,  the  justice  aforesaid,  did  then  and  there  make  a 
certain  warrant  under  his  hand  and  seal,  in  due  form  of  law, 
bearing  date  the  first  day  of  June  in  the  year  aforesaid, 
directed  to  the  keeper  of  Newgate  or  his  deputy,  command- 
ing the  said  keeper  or  his  deputy,  that  he  should  receive  into 
his  custody  the  said  J.  N.,  brought  before  him  and  charged 
upon  the  oath  of  the  said  Catherine  Hope,  with  the  premises 
above  specified ;  and  the  said  justice,  by  the  said  warrant,  did 
command  the  said  keeper  of  Newgate,  or  his  deputy,  to 
safely  keep  the  said  J.  N.  liiere  until  he  by  due  course  of  law 

»  Arclibulil,  Crim.  I'l.  (Am.  cd.  181C),  G52,  GC3. 


CHAP.  XLIII.]  RESCUE.  453 

should  be  discharged ;  which  said  warrant  afterwards,  to  wit, 
on  the  day  and  year  aforesaid,  at  B.  aforesaid,  in  the  county 
aforesaid,  was  delivered  to  the  said  J.  S.,  then  being  one  of 
the  constables  of  said  B.  as  aforesaid,  and  then  and  there 
having  the  said  J.  N.  in  his  custody  for  the  cause  aforesaid ; 
and  the  said  J.  S.  was  then  and  there  commanded  by  the  said 

A.  C,  the  justice  aforesaid,  to  convey  the  said  J.  N.  without 
delay,  to  the  said  jail  of  Newgate,  and  to  deliver  the  said  J. 
N.  to  the  keeper  of  the  said  jail,  or  his  deputy,  together  with 
the  warrant  aforesaid.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  J.  N.  late  of 

B.  aforesaid,  in  the  county  aforesaid,  laborer,  and  J.  T.  late  of 
the  same  place,  laborer,  afterwards,  and  while  the  said  J.  N. 
was  in  the  custody  of  the  said  J.  S.,  under  the  said  warrant 
as  aforesaid,  and  while  the  said  J.  S.  was  conveying  the  said 
J.  N.  under  and  by  virtue  of  the  warrant,  to  the  said  jail  of 
Newgate,  to  wit,  on  the  day  and  year  aforesaid,  with  force 
and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and 
upon  the  said  J.  S.,  then  and  there  being  a  constable  as  afore- 
said, and  then  and  there  law^fuUy  having  the  said  J.  N.  in  his 
custody,  by  virtue  of  the  said  warrant,  for  the  cause  aforesaid, 
in  the  due  execution  of  his  said  office  then  and  there  being, 
did  make  an  assault,  and  the  said  J.  S.  then  and  there  did 
beat,  wound,  and  ill-treat ;  and  that  the  said  J.  T.,  the  said  J. 
N.  out  of  the  custody  of  the  said  J.  S.  and  against  the  will 
of  the  said  J.  S.,  then  and  there  unlawfully  and  forcibly  did 
rescue  and  put  at  large,  to  go  whithersoever  he  would ;  and 
that  the  said  J.  N.,  himself  out  of  the  custody  of  the  said  J. 
S.  and  against  the  will  of  the  said  J.  S.,  then  and  there  unlaw- 
fully and  forcibly  did  rescue  and  put  at  large,  to  go  whither- 
soever he  would ;  against  the  peace,  etc.,  and  contrary  to  the 
form  of  the  statute,  etc. 


454  RESCUE.  [CUAP.  XLIII, 


2.  Another  precedent  for  the  same} 

The  jurors,  etc.,  upon  their  oath  present,  that  before  the 
committing  of  the  offence  hereinafter  mentioned,  to  wit,  on 

the  third  day  of  January  in  the  year  of  our  Lord ,  at  B. 

in  the  county  of  S.,  and  within  the  jurisdiction  of  the  said 
court,  one  John  Witty  was  apprehended  and  taken  into  cus- 
tody by  John  Squire,  then  and  there  being  a  peace-officer,  to 
wit,  a  constable  of  the  metropolitan  police  force,  on  a  charge 
then  and  there  made  to  the  said  John  Squire  by  one  Maria 
Baker,  that  the  said  John  Witty  had  then  and  there  feloni- 
ously stolen,  taken,  and  carried  away  twelve  silver  teaspoons 
of  the  value  of  two  dollars,  each  of  the  goods  and  chattels  of 
Henry  Baker,  and  which  said  John  Witty  afterwards,  to  wit, 
at  the  Court  of  Common  Pleas,  begun  and  holden  at  B. 
Aathin  the  county  of  M.,  on  the  fourth   Monday  of  June  in 

the  year  of  our  Lord ,  before  J.  P.,  Esquire,  one  of  the 

Justices  of  said  Court,  was  in  due  form  of  law  convicted  of 
and  for  the  said  felony  so  charged  against  him  as  aforesaid. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  on  the  day  and  year  first  aforesaid,  and  whilst 
the  said  John  Witty  was  in  the  lawful  custody  of  the  said 
John  Squire  as  aforesaid,  upon  the  said  charge  of  felony  as 
aforesaid,  John  Mukes,  late  of  B.,  in  the  county  of  S.  afore- 
said, laborer,  Patrick  Scully,  late  of  the  same  place,  laborer, 
and  James  Callaghan,  late  of  the  same  place,  laborer,  well 
knowing  the  premises  aforesaid,  with  force  and  arms,  at 
B.  aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within 
the  jurisdiction  of  the  said  Court,  in  and  upon  the  said  John 
Squire  then  and  there  being  such  constable  as  aforesaid,  and 
then  and  there  lawfully  having  the  said  John  Witty  in  his 
custody,  upon  the  said  charge  of  felony  as  aforesaid,  feloni- 
ously did  make  an  assault,  and  that  the  said  John  Muires, 
Patrick  Scully,  Dei^nis  Sullivan,  and  James  Callaghan,  the 
said  .John  Wilty  out  of  llie  cuslody  of  the  said  .lohn  Squire, 

'  2  Cox,  C.  C.  A])2wndix,  p.  xliii. 


CHAP,  xliil]  rescue.  455 

and  against  the  will  of  the  said  John  Squire,  then  and  there 
feloniously,  unlawfully,  and  forcibly  did  rescue,  and  aid  and 
assist  in  rescuing ;  against  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  of,  etc. 

Second  Count. —  Similar  to  the  first,  but  charging  that  the 
said  John  Witty  was  apprehended  by,  and  rescued  by  pris- 
oners from  the  custody  of  Benjamin  Pain,  John  Squire,  and 
Thomas  Richards,  then  and  there  being  peace-officers,  to  wit, 
constables  of  the  metropolitan  police  force,  the  cause  of 
apprehension  and  the  conviction  being  alleged  as  in  the  first 
count. 


CHAPTER    XLIV. 

RIOT. 

1.  For  riot  mid  assault?- 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  late 
of  B.  in  the  county  of  S.,  laborer,  C.  D.  late  of  the  same  place, 
carpenter,  E.  F.,  late  of  the  same  place,  shoemaker,  together 
with  divers  other  evil  disposed  persons,  to  the  number  of 
twelve  and  more,  to  the  jurors  aforesaid  unknown,  on  the  fifth 

day  of  November  in  the  year  of  our  Lord ,  with  force 

and  arms,*  ^  at  B.  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully, riotously,  and  routously  did  assemble  and  gather 
together,  to  the  disturbance  of  the  public  peace,f  and  being 
so  then  and  there  assembled  and  gathered  together,  in  and 
and  upon  one  S.,  the  wife  of  J.  T.,  then  and  there  unlawfully, 
riotously,  and  routously  did  make  an  assault,  and  the  said  S. 
then  and  there  unlawfully,  riotously,  and  routously  did  beat, 
wound,  and  ill-treat,  so  that  her  life  was  greatly  despaired 
of,  and  other  wrongs  to  the  said  S.  then  and  there  unlawfully, 
riotously,  and  routously  did ;  to  the  evil  example  of  all  others 
in  the  like  case  offending,  and  against  the  peace,  etc. 

2.  For  riot  and  turmdt? 

The  jurors,  as  in  the  last  precedent,  to  the  asterisk,  then 
thus :  to  wit,  with  sticks,  staves,  and  other  offensive  weapons. 


'  Jlatthfws,  Crim.  Law,  527. 

*  It  is  not  necessary  to  repeat  tlic  words  "  with  force  and  arms."  Coiumon- 
■wcalth  V.  Runnels,  10  Massaeluisetts,  (Rand's  ed.),  518. 
'  3  IMattbews,  Criiu.  Law,  5'J7. 


CHAP.  XLIV.]  RIOT.  457 

at  B.  aforesaid,  in  the  county  aforesaid,  unlawfully,  riotously, 
and  routously  did  assemble  and  gather  together,  to  the  dis- 
turbance of  the  public  peace,  and  being  so  assembled  and 
gathered  together,  armed  as  last  aforesaid,  did  then  and  there 
unlawfully,  riotously,  and  routously  make  a  great  noise,  riot, 
and  disturbance,  and  did  then  and  there  remain  and  continue 
armed  as  last  aforesaid,  making  such  noise,  riot,  and  disturb- 
ance, for  the  space  of  an  hour  and  more  then  next  following, 
to  the  great  disturbance  and  terror  ^  not  only  of  the  citizens 
of  said  Commonwealth,  then  and  there  being  and  residing, 
but  of  all  other  the  citizens  of  said  Commonwealth,  then 
passing  and  repassing  in  and  along  the  common  highway 
there  :  in  contempt,  etc.,  and  against  the  peace,  etc. 

3.  For  remaining  one  hour  after  pi'oclamation  7nade? 

The  jurors,  as  in  precedent  number  one  to  the  dagger,  and 
then  thus :  f  and  the  said  A.  B.,  C.  D.,  E.  F.,  and  the  said 
other  persons  to  the  jurors  aforesaid  unknown,  being  so> 
unlawfully,  riotously,  and  tumultuously  assembled  together 
to  the  disturbance  of  the  public  peace,  as  aforesaid,  after- 
wards and  whilst  they  were  so  assembled  as  aforesaid,  to  wit, 
on  the  day  and  year  aforesaid,  at  B.  aforesaid,  in  the  county 
aforesaid,  one  R.  P.,  Esquire,  then  being  one  of  the  justices 
of  the  peace,  within  and  for  the  county  of  S.,  legally  author- 
ized and  duly  qualified  to  discharge  and  perform  the  duties 
of  that  office,  as  near  to  them  the  said  A.  B.,  C.  D.,  E.  F., 
and  the  said  other  persons  to  the  jurors  aforesaid  unknown, 
so  unlawfully,  riotously,  and  tumultuously  assembled,  to  the 
number  of  twelve  and  more,  as  aforesaid,  as  the  said  R.  P. 
could  then  and  there  safely  come,  did  then  and  there  com- 
mand and  cause  to  be  commanded  silence  to  be,  while  procla- 
mation was  making;  and  that  the  said  R.  P.  after  that,  did 
then  and  there,  as  near  to  them  the  said  A.  B.,  C.  D.,  E.  F,, 

*  If  an  unlawful  act  is  charged,  this  averment  is  unnecessary.     Common- 
wealth I'.  Runnels,  10  Massachusetts,  (Rand's  ed.),  518. 
^  Matthews'  Crim.  Law,  528. 

39      • 


458  RIOT.  [chap.  xliv. 

and  the  said  other  persons  so  assembled,  to  the  number  of 
twelve  and  more,  as  aforesaid,  as  the  said  R.  P.  could  then 
and  there  safely  come,  openly  and  with  a  loud  voice  did  make 
and  cause  to  be  made  proclamation,  according  to  the  form  of 
the  statute  in  such  case  made  and  provided,  in  these  words 
following,  that  is  to  say,  etc.  ^  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  A.  B.,  C. 
D.,  E.  F.,  and  the  said  other  persons  to  the  number  of  twelve 
and  more,  to  the  jurors  aforesaid  unknown,  being  so  required 
and  commanded  by  the  said   R.  P.,  the  justice  aforesaid,  to  ■ 

disperse  themselves,  and  peaceably  to  depart  to  their  habita- 
tions, or  to  their  lawful  business,  did  then  and  there,  to  the 
number  of  twelve  and  more,  with  force  and  arms,  notwith- 
standing the  said  proclamation  so  made  as  aforesaid,  feloni- 
ously, unlawfully,  riotously,  and  tumultuously  remain  and 
continue  together  by  and  for  the  space  of  one  hour  after  such 
command  so  made  by  the  said  proclamation  as  aforesaid :  to 
the  evil  example  of  all  others  in  the  like  case  offending, 
against  the  peace,  etc. 

^  The  proclamation  must  be  set  out  correctly,    Kex  v.  Woolcock,  5  Car- 
rington  &  Payne,  516. 


CHAPTER    XLV. 

ROBBERY. 

Robbery,  by  the  common  law,  is  larceny  from  the  person, 
accompanied  by  violence,  or  by  putting  in  fear ;  and  an  in- 
dictment therefor  must  allege  that  the  taking  was  from  the 
person,  and  that  it  was  by  violence  or  by  putting  in  fear,  in 
addition  to  the  averments  that  are  necessary  in  indictments 
for  other  larcenies.^  It  is  necessary  that  the  taking  should  be 
charged  to  be  with  violence  from  the  person,  and  against  the 
will  of  the  party ;  ^  but  it  is  not  necessary  that  the  indictment 
should  also  charge  that  he  was  put  in  fear.^  But  no  technical 
description  of  violence  is  necessary.* 

It  is  obvious  that  the  general  principle,  that  the  name  of 
the  party  injured,  if  known,  must  be  set  forth  in  the  indict- 
ment, with  accuracy,  is  equally  applicable  to  the  crime  of 
robbery.^     The  indictment  must  also  allege  that  the  articles 


*  Commonwealtli  v.  Clifford,  8  Gushing,  215;  Rex  v.  Rogan,  Jebb,  C.  C. 
62;  Rex  v.  Donally,  1  Leach,  C.  C.  (4th  London  ed.),  193;  2  East,  P.  C. 
719. 

*  Kit  V.  The  State,  11  Humphreys,  167. 

*  Commonwealth  v.  Humphries,  7  Massachusetts,  (Rand's  ed.),  242  ;  Com- 
monwealth V.  Clifford,  8  Cushing,  215,  217. 

*  Rex  V.  Smith,  2  East,  P.  C.  783. 

'But  in  Rex  v.  Turner,  1  Leach,  C.  C.  (4th  Loudon  ed.),  536,  where  the 
defendant  was  indicted  for  a  robbery,  on  the  person  of  Elizabeth  Hudson, 
and  it  appeared  that  the  prosecutor  was  unmarried  at  the  time  the  robbery 
■was  committed,  and  that  her  name  was  Elizabeth  Hudson,  but  that  after  the 
robbery,  and  at  the  time  the  bill  was  presented  to  and  found  by  the  grand- 
jury,  she  was  married  to  a  person  of  the  name  of  Heywood,  it  was  held,  that 
the  description  of  the  maiden  name  was  sufficient. 


460  ROBBERY.  [chap.  XLV. 

stolen,  were  the  property  of  the  person  robbed,  or  of  some 
third  person,  and  that  they  were  carried  away  by  the  de- 
fendant.^ 

Many  nice  cases  have  been  determined  as  to  what  should 
be  considered  a  robbery  in  or  near  the  highway,  and  as  to  the 
manner  of  alleging  it  in  the  indictment,  which  was  most 
usually  done  in  the  disjunctive,  in  or  near,  the  highway;  and 
this  mode  of  pleading  was  held  to  be  sufficient.^  In  indict- 
ments on  those  statutes  which  are  general,  and  are  not  con- 
fined to  a  robbery  in  or  near  the  highway,  it  is  better  to  omit 
any  particular  description  of  the  place,  although  a  variance 
would  be  immaterial.^ 


^  Commonwealtli  v.  ClifTord,  8  Gushing,  215.  See  Rex  t.  Hall,  3  Carrliig- 
ton  &  Payne,  409. 

2  Rex  V.  Stocker,  5  Modern  Rep.  137  ;  Salkeld,  342,  371  ;  2  East,  P.  C. 
784  ;  1  Gabbett,  Grim.  Law,  237.  This  case  was  decided  on  the  principle, 
that  where  an  indictment  is  founded  on  a  statute  which  describes  the  offence 
disjunctively,  it  is  sufficient  to  follow  the  words  of  the  statute.  But  the 
Supreme  Gourt  of  Massachusetts,  in  a  case  not  yet  reported,  have  held  a 
directly  opposite  doctrine. 

*  2  Starkie,  Grim.  PI.  (London  ed.  1828,)  474,  note  r\  1  Gabbett,  Grim. 
Law,  593.  It  was  so  decided  in  Rex  v.  Wardle,  Russell  &  Ryan,  G.  G.  9 ; 
2  East,  P.  C.  785,  who  was  tried  upon  an  indictment  charging  him  with  rob- 
bing one  G.  H.,  in  an  open  field  near  the  highway,  and  the  jury  having  found 
him  guilty  of  the  robbery,  but  not  near  the  highway,  the  judges  held,  that 
the  conviction  was  right ;  and  that  the  circumstance  of  being  in  a  field  near 
the  highway  was  immaterial.  See  also  Rex  v.  Summers,  2  East,  P.  G.  785  ; 
Rex  V.  Darnford,  2  East,  P.  G.  785.  The  name  of  the  owner  of  the  house 
in  which  the  robbery  was  committed  seems  to  be  immaterial.  In  Rex  v. 
Pye,  2  East,  P.  G.  785,  where  the  prisoner  was  convicted  upon  an  indict- 
ment wliich  charged  him  with  robbing  a  person  in  the  dwelling-house  of  Aaron 
"Wilday,  and  it  had  not  appeared  who  was  the  owner  of  the  house  in  which 
the  fact  was  committed,  tlie  judges  lield  the  conviction  to  be  right.  And  so 
•whore  Susannah  Jolinstone  was  convicted  on  an  indictment  for  robbing  R.  D. 
in  the  dwelling-house  of  Joseph  Johnstone,  and  it  appeared  that  the  robbery 
was  committed  by  her  in  her  Inisband's  house,  but  his  Ghristian  name  could 
not  be  proved,  the  conviction  was  held  to  be  proper.  Rex  v.  Johnstone,  2 
East,  P.  G.  780. 


CHAP,  XLV.]  ROBBERY.  461 


1.  Indictment  for  rohhery  at  common  law.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  B.  in  the  county  of  S.,  in  and  upon 
one  J.  N.,  feloniously  did  make  an  assault,^  and  the  said  J. 
N.,  in  bodily  fear  and  danger  of  his  life,  then  and  there 
feloniously  did  put,  and  one  gold  watch  of  the  value  of  one 
hundred  dollars,  of  the  goods  and  chattels  of  the  said  J.  N., 
from  the  person  and  against  the  will  of  the  said  J.  N.  then 
and  there  feloniously  and  violently  did  steal,  take,  and  carry 
away ;  against  the  peace,  etc. 

2.  For  robbery.,  the  prisoner  being'  armed  with  a  dangerous 
weapon.  —  Mass.  Rev.  Sts.  ch.  125,  §  13.^ 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid, 
in  and  upon  one  J.  N.  feloniously  did  make  an  assault,  and 
the  said  J.  N.  in  bodily  fear  and  danger  of  his  life,  then  and 
there  feloniously  did  put,  and  one  gold  watch,  of  the  value 
of  two  hundred  dollars,  of  the  goods  and  chattels  of  the  said 
J,  N,,  from  the  person  and  against  the  will  of  the  said  J.  N., 


'  Matthews,  Crim.  Law,  529.  The  indictment  may  charge  the  defend- 
ant with  having  assaulted  several  persons,  and  stolen  different  sums  from 
each,  if  the  Avhole  was  one  transaction,  llegina  c.  Giddins,  Carrington  & 
Marshman,  634. 

^  It  is  an  essential  part  of  the  indictment,  that  the  assault  should  be  alleged 
to  be  made  feloniously.  And  therefore  in  Rex  v.  Pelfryman,  2  Leach,  C.  C. 
(4th  London  ed.),  563  ;  2  East,  P.  C.  783,  the  judgment  was  arrested  for 
this  omission,  though  it  charged  that  the  prosecutor  was  feloniously  put  in 
fear  and  danger  of  his  life.  See  1  Starkie,  Crim.  PL  (4th  London  ed.),  90  ; 
ante,  p.  253. 

^  See  Commonwealth  v.  Martin,  17  Massachusetts,  (Rand's  ed.),  359. 

39* 


462  ROBBERY.  [chap.  XLV. 

then  and  there  feloniously,  and  by  force  and  violence,  did 
robji  steal,  take,  and  carry  away,  the  said  C.  D.  being  then 
and  there  armed  with  a  dangerous  weapon,  to  wit,  a  pistol, 
with  intent,  if  then  and  there  resisted  by  the  said  J.  N., 
the  said  J.  N.  then  and  there  to  kill;  against  the  peace, 
etc.,  and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


3.  For  robbery,  the  prisoner  being"  armed  with  a  dangerous 
iveapo7i,  and  striking  and  ivounding  the  person  robbed.  — 
On  the  latter  clause  of  the  thirteenth  section  of  the 
Rev.  Sts.  of  Mass.  ch.  125. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  J.  N.,  feloniously  did 
make  an  assault,  and  the  said  J.  N.  in  bodily  fear  and 
danger  of  his  life,  then  and  there  feloniously  did  put,  and 
sundry  pieces  of  silver  coin,  current  within  this  Common- 
wealth by  the  laws  and  visages  thereof,  amounting  together 
to  the  sum  of  twelve  dollars,  and  of  the  value  of  twelve 
dollars,  of  the  moneys  and  property  of  the  said  J.  N.  from 
the  person  and  against  the  will  of  the  said  J.  N.,  then  and 
there  feloniously,  and  by  force  and  violence  did  rob,  steal, 
take,  and  carry  away;  and  that  the  said  A.  B.,  was  then 
and  there  armed  with  a  certain  dangerous  weapon,  to  wit, 
a  pistol,  and  being  then  and  there  so  armed  as  aforesaid, 
the  said  A.  B.,  with  the  dangerous  weapon  aforesaid,  the  said 
J.  N.  in  and  upon  the  face  and  head  of  the  said  J.  N.,  then 
and  there  feloniously  did  strike  and  wound;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


'  The  word  "  rob  "  is  essential.     Commouwcalth  r.  Clitlbrd,  8  Gushing,  215, 
217. 


CHAP.  XL  v.]  ROBBERY.  463 


4.  For  robbery,  not  being'  armed.  —  Rev.  Sts.  of  Mass.  ch. 

125,  §  15.1 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of,  etc.,  laborer,  on  the  first  day  of  June  in  the  year  of  our 

Lord ,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 

aforesaid,  in  and  upon  one  J.  N.  feloniously  did  make  an 
assault,  and  the  said  J.  N.  then  and  there  feloniously  did  put 
in  fear,  and  one  gold  watch,  of  the  value  of  one  hundred  dol- 
lars, of  the  goods  and  chattels  of  the  said  J.  N.,  from  the  per- 
son and  against  the  will  of  the  said  J.  N.  then  and  there 
feloniously,  and  by  force  and  violence,  did  rob,  steal,  take, 
and  carry  away ;  against  the  peace,  etc.,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

5.  For  attempting  to  extort  money  by  threatening  to  accuse 
another  of  a  crime.  —  Rev.  Sts.  of  Mass.  ch.  125,  §  17. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 

of,  etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord , 

with  force  and  arms,  at  B.  aforesaid,  in  the  county  aforesaid, 
unlawfully  and  maliciously  did  threaten  one  J.  N.,  in  a  cer- 
tain conversation  which  the  said  C.  D.  then  and  there  had  of 
and  concerning  the  said  J.  N.,  to  accuse  the  said  J.  N.  of  hav- 
ing, here  describe  the  accusation,  with  the  intent  by  so  doing 
thereby  then  and  there  to  extort  from  the  said  J.  N.  a  certain 
sum  of  money,  to  wit,  the  sum  of  five  hundred  dollars ; 
against  the  peace,  etc.,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 


'  See  Commonwealth  v.  Humphries,  7  Massachusetts,  (Rand's  ed.),  242 ; 
Commonwealth  v.  Clifford,  8  Cushing,  215,  217. 


CHAPTER    XLVI 


SEPULCHKES    OF   THE   DEAD. 


1.  For  digging  up  and  carrying  away  a  dead  body} 

The  jurors,  etc.,  upon  their  oath  present,  that  J.  S.  late  of 
B.  in  the  county  of  M.,  laborer,  on  the  third  day  of  August  in 
the  year  of  our  Lord ,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  churchyard  of  and  belonging 
to  the  parish  church  of  said  B.  there  situate,  unlawfully  and 
wilfully  did  break  and  enter,  and  the  grave  there  in  which 
one  J.  N.  deceased,  had  lately  before  then  been  interred,  and 
then  was,  with  force  and  arms,  then  and  there  unlawfully, 
wilfully,  and  indecently  did  dig  open,  and  then  and  there  the 
body  of  the  said  J.  N.  out  of  the  grave  aforesaid,  unlawfully, 
wilfully,  and  indecently  did  take  and  carry  away ;  against  the 
peace,  etc. 

2.  For  disinterring  and  removing  a  dead  body  without  permis- 
sion. —  Rev.  Sts.  of  Mass.  ch.  130,  §  19. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 

etc.,  on  the  first  day  of  June  in  the  year  of  our  Lord ,  at  W. 

in  the  county  of  H,,  with  force  and  arms,  the  common  bury- 
iiig-gronnd  there  situate,^  unlawfully  and  wilfully  did  break 
and  (;ntrr,  and  a  grave  there,  in  which  a  certain  human  body,  to 
wit,  tlie  Ixxly  of  one  J,  N.,  had  lately  before  been  interred,  and 


'  Ardibold,  Crim.  PI.  (Am.  od.  18-16),  786. 

'  It  is  iif)t  necessary  lo  allcj^c  to  wliDin  the  burying-ground  belonged.   Com- 
mon weallli  v.  Coolcy,  10  rickcring,  37. 


CHAP.  XLVI.]       SEPULCHRES  OF  THE  DEAD.  465 

then  was,  then  and  there  unlawfully  and  wilfully  did  open, 
and  the  body  of  the  said  J.  N.  then  and  there  in  the  grave 
aforesaid  being,  then  and  there  unlawfully  and  wilfully  did 
dig  up,  disinter,  remove,  and  convey  away  from  and  out  of 
the  grave  aforesaid,  the  said  C.  D.  and  E.  F.  then  and  there 
intending  to  use  and  dispose  of  the  said  body  for  the  purpose 
of  dissection  ;  ^  the  said  C.  D.  and  E.  F.  not  being  then  and 
there  authorized  so  to  do,  either  by  the  board  of  health,  or 
the  overseers  of  the  poor,  or  the  directors  of  the  workhouse, 
or  the  selectmen  of  the  said  town  of  W.,  in  which  the  said 
grave  and  the  burying-ground  aforesaid  was  and  is  situate  ;  '^ 
against  the  peace  of  said  Commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. 

^  This  is  a  necessary  ayerment.  Commonwealth  v.  Slack,  19  Pickering, 
304. 

^  It  is  sufficient  to  aver  that  the  defendant  was  not  authorized  by  the 
selectmen,  etc.,  of  the  town  where  the  body  was  buried.  Commonwealth  r. 
Loriug,  8  Pickering,  309. 


CHAPTER    XLYII. 

SLUNG   SHOT. 

1.  For  being'  armed  with  slung  shot  when  arrested  while  com- 
mitting  a  burglary.  —  Mass.  St.  1850,  ch.  194,  §  1. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
W.  in  the  county  of  W.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord  ,  in  the  night  time  of  the  same 

day,  with  force  and  arms,  at  W.  in  the  county  of  W.,  the 
dwelling-house  of  one  A.  B.  there  situate,  feloniously  and 
burglariously  did  break  and  enter,  with  intent  the  goods  and 
chattels  of  the  said  A.  B.,  in  the  said  dwelling-house  then  and 
there  being,  then  and  there  feloniously  and  burglariously  to 
steal,  take,  and  carry  away,  in  the  dwelling-house  aforesaid; 
and  that  the  said  C.  D.,  at  the  time  said  felony  and  burglary 
was  committed,  in  manner  and  form  aforesaid,  to  wit,  on  the 
said  first  day  of  June  in  the  year  aforesaid,  in  the  night  time 
of  the  same  day,  at  W.  aforesaid,  in  the  county  aforesaid, 
was  arrested  by  one  J.  N.,  one  of  the  constables  of  the  said 
town  of  W.,  duly  appointed  and  qualified  to  discharge  and 
perform  the  duties  of  that  office ;  and  that  the  said  C.  D.,  at 
the  time  said  arrest  was  made,  in  manner  and  form  aforesaid, 
was  then  and  there  armed  with  a  certain  dangerous  weapon, 
of  the  kind  usually  called  slung  shot;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


CHAP.  XLVII.]  SLUNG   SHOT.  467 


2.  For  selling  slung  shot. —  Mass.  St.  1850,  ch.  194,  §  2. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
W.  in  the  county  of  W.,  laborer,  on  the  first  day  of  June  in 

the  year  of  our  Lord ,  within  this  State,  to  wit,  at  W. 

aforesaid,  in  the  county  aforesaid,  and  Commonwealth  afore- 
said, unlawfully  did  sell  to  one  A.  B.  a  certain  weapon  of 
the  kind  usually  known  as  slung  shot ;  against  the  peace  of 
said  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 


CHAPTER    XLVIII. 

SODOMY  AND   BESTIALITY. 

1.  Indictment  for  sodomy.  —  Rev.  Sts.  of  Mass.  ch.  130,  §  14. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
B.  in  the  county  of  S.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  J.  N.  feloniously  did 
make  an  assault ;  and  then  and  there  ifeloniously,  wickedly, 
and  against  the  order  of  nature,  did  commit  the  abominable 
and  detestable  crime  against  nature  with  the  said  J.  N.,  by 
then  and  there  having  carnal  knowledge  of  the  body  of  the 
said  J.  N. ;  against  the  peace,  etc.,  and  contrary  to  the  form 
of  the  statute,  etc. 

2.  Another  'precedent  for  the  same?- 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of, 
etc.,  on,  etc.,  with  force  and  arms,  at,  etc.,  in  and  upon  one  J. 
N.  feloniously  did  make  an  assault,  and  then  and  there  felo- 
niously, wickedly,  diabolically,  and  against  the  order  of  nature, 
had  a  venereal  affair  with  the  said  J.  N.,  and  then  and  there 
carnally  knew  the  said  J.  N.,  and  then  and  there  feloniously, 
wickedly,  dialjolieally,  and  against  the  order  of  nature,  with 
the  said  J.  N.  did  (commit  and  perpetrate  the  detestable  and 
abominable  crime  of  buggery ,2  not  to  be  named  among  Chris- 


'  2  Starkie,  Crim.  Tl.  (London  ed.  1828),  -i.-Jfj. 

*  This  word  is  essential.     2  Starkie,  Crim.  PI.  (London  ed.  1828),  43G, 
note;  1  Gabbc'tt,  Crim.  Law,  107. 


CHAP.  XLVIII.]  SODOMY  AND    BESTIALITY.  469 

tians ;  ^  against  the  peace,  etc.,  and  contrary  to  the  form  of 
the  statute,  etc. 


3.  Indictment  for  bestiality.  —  Rev.  Sts.  of  Mass.  ch.  130,  §  1\? 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late 
of  W.  in  the  county  of  W.,  laborer,  on  the  lirst  day  of  June  in 
the  year  of  our  Lord ,  at  W.  in  the  county  of  W.,  feloni- 
ously, wickedly,  and  against  the  order  of  nature,  did  commit 
the  abominable  and  detestable  crime  against  nature,  with  a 
certain  beast,  to  wit,  with  a  cow,  by  then  and  there  having 
carnal  knowledge  of  the  body  of  the  said  cow ;  against  the 
peace  of  said  Commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 


^  These  words  are  usual  in  indictments  for  this  offence,  and  are  retained  in 
modern  precedents. 

^  An  indictment  for  bestiality,  which  describes  the  animal  as  "  a  certain 
animal  called  a  bitch,"  is  sufficiently  certain,  although  the  females  of  foxes 
and  some  other  animals  are  called  bitches,  as  well  as  the  female  of  the  dog. 
Eegina  v.  Allen,  1  Carrington  &  Kirwan,  495. 

40 


CHAPTER     XLIX. 


THEEATENING  LETTER. 


1.  LuUctment  for  threatening  to  accuse  of  an  infamous  criine?- 

The  jurors,   etc.,   upon   their    oath   present,   that    Henry 
Tiddeman,  late  of  B.  in  the  county  of  Middlesex,  and  within 


^  This  precedent  is  taken  from  the  case  of  Regina  v.  Tiddeman,  4  Cox,  C. 
C.  387.  It  was  contended,  in  arrest  of  judgment,  that  the  indictment  was 
defective  for  not  alleging  that  the  security  sought  to  be  obtained  was  the 
property  of  the  prosecutor.  And  it  was  held,  that  it  was  not  necessary  to 
aver  to  whom  the  security  belonged.  Piatt,  B.,  delivered  the  following  judg- 
ment :  "  The  indictment  charges  the  prisoners  with  making  certain  threats, 
with  intent  to  extort  from  the  prosecutor  a  valuable  security;  but  it  does  not 
state  whose  property  that  security  was,  and  the  question  is,  whether  or  not 
the  omission  is  fatal  to  its  validity.  The  statute  on  which  the  indictment  is 
framed  is  the  10  &  11  Vict.  ch.  66,  §  2,  which  makes  it  an  offence  to  accuse 
or  threaten  to  accuse  any  person  of  the  offence  specified,  with  a  view  or  in- 
tent to  extort  or  gain  from  such  person  any  property,  money,  or  security. 
The  words  of  the  statute  are  exceedingly  important,  because  one  of  them, 
namely,  '  extort,'  has  a  certain  technical  meaning,  which  is  defined  in  2  Salk- 
eld,  and  when  a  man  is  charged  with  extorsively  taking,  the  very  import  of 
the  word  shows  that  he  is  not  acquiring  possession  of  his  own.  The  ordinary 
form  of  indictment  for  extortion  may  be  found  in  Burns's  Justice,  and  the 
language  there  shows  that  it  is  not  at  all  necessary  that  the  thing  extorted 
should  be  said  to  be  the  property  of  any  person.  In  Rex  v.  Norton,  8  Car- 
rington  &  Payne,  186,  the  indictment  was  held  bad  for  want  of  such  an  aver- 
ment ;  but  that  was  an  indictment  under  another  statute,  which  made  it  nec- 
essary that  the  party  charged  under  it  should  actually  obtain  the  thing  sought 
to  be  obtained  ;  but  that  is  not  so  liere,  because,  whether  any  thing  is 
obtained  or  not,  the  crime  is  complete,  and,  therefore,  whether  the  jiroperty 
belongs  to  the  person  threatened  or  not,  is  quite  inunaterial,  the  odencc  is 
committed  immediately  the  accusation  is  ina<U',  with  the  evil  intent  stated  in 
the  indictment." 


CHAP.  XLIX.]  THREATENING   LETTER.  471 

the  jurisdiction  of  the  Central  Criminal  Court,  laborer,  Wil- 
liam Laadler,  late  of  the  same  place,  laborer,  John  Bennett, 
late  of  the  same  place,  laborer,  John  Jones,  late  of  the  same 
place,  laborer,  otherwise  called  John  Joyce,  and  John  Sulli- 
van, late  of  the  same  place,  laborer,  on  the  second  day  of 

March  in  the  year  of  our  Lord ,  at  B.  aforesaid,  in  the 

county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
feloniously  did  threaten  one  Samuel  Wyatt,  to  accuse  the 
said  Samuel  Wyatt  of  having  committed  the  abominable 
crime  of  buggery  with  the  said  Henry  Tiddeman,  with  a  view 
and  with  the  intent  in  so  doing  then  and  there  and  thereby 
to  extort  and  gain  from  the  said  Samuel  Wyatt  a  certain 
valuable  security  for  the  payment  of  money,  to  wit,  a  security 
for  the  payment  of  the  sum  of  fifty  dollars ;  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  etc. 

The  Second  Count  alleged  that  the  prisoners  feloniously 
did  accuse  the  said  Samuel  Wyatt  of  having  committed  the 
abominable  crime,  etc.,  with  the  said  Henry  Tiddeman. 

Third  Count. —  That  they  feloniously  did  threaten  the  said 
Samuel  Wyatt,  to  accuse  the  said  Samuel  Wyatt  of  having 
attempted  and  endeavored  to  commit  the  abominable  crime, 
etc.,  with  the  said  Henry  Tiddeman. 

Fourth  Count.  —  That  they  did  accuse  the  said  Samuel 
Wyatt  of  having  attempted  and  endeavored  to  commit  the 
abominable  crime  of  buggery  with  the  said  Henry  Tiddeman. 

Fifth  Count.  —  That  they  feloniously  did  threaten  the  said 
Samuel  Wyatt,  to  accuse  the  said  Samuel  Wyatt  of  a  cer- 
tain infamous  crime,  that  is  to  say,  of  having  made  to  the 
said  Henry  Tiddeman  a  certain  solicitation,  whereby  to  move 
and  induce  the  said  Henry  Tiddeman  to  commit  with  said 
Samuel  Wyatt  the  abominable  crime,  etc. 

Sixth  Count.  —  That  they  did  accuse  the  said  Samuel 
Wyatt  of  a  certain  infamous  crime,  that  is  to  say,  of  having 
made  to  the  said  Henry  Tiddeman  a  certain  solicitation, 
v.diereby  to  move  and  induce  the  said  Henry  Tiddeman  to 
commit  with  the  said  Samuel  Wyatt  the  abominable  crime, 
etc. 


472  THREATENING  LETTER.  [CHAP.  XLIX. 

Seventh  Count.  —  That  they  did  threaten  the  said  Samuel 
Wyatt,  to  accuse  the  said  Samuel  Wyatt  of  having  com- 
mitted the  abominable  crime,  etc. 

Eighth  Count.  —  That  they  did  accuse  the  said  Samuel 
Wyatt  of  having  committed  the  abominable  crime,  etc. 

Ninth  Count.  —  That  they  did  threaten  the  said  Samuel 
"Wyatt,  to  accuse  the  said  Samuel  Wyatt  of  having  attempt- 
ed and  endeavored  to  commit  the  abominable  crime,  etc. 

Tenth  Count.  —  That  they  did  accuse  the  said  Samuel 
Wyatt  of  having  attempted  and  endeavored  to  commit  the 
abominable  crime,  etc. 

Eleventh  Count. —  That  they  did  threaten  one  Samuel 
Wyatt,  to  accuse  the  said  Samuel  Wyatt  of  having  com- 
mitted the  abominable  crime,  etc.,  with  the  said  Henry  Tid- 
deman,  with  a  view  and  intent  thereby  to  extort  money  from 
the  said  Samuel  Wyatt.  There  were  nine  other  counts,  only 
varying  from  the  first  ten  as  the  eleventh  did  in  alleging  the 
intent  to  be  to  extort  money. 

There  was  no  allegation  in  any  count  as  to  whose  property 
the  security  or  the  money  was. 


2.  For  sending  a  letter,  threatening  to  accuse  a  person  of  a 
crime.  —  Mass.  Rev.  Sts.  ch.  125,  §  17.i 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
F.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in  the 

year  of  our  Lord ,  at  F.  in  the  county  of  M.,  feloniously, 

knowingly,  wilfully,  and  maliciously  did  threaten  one  E.  F., 
to  accuse  the  said  E.  F.  of  having  committed  the  crime  of, 
here  set  forth  the  crime,  by  then  and  there  feloniously,  know- 
ingly, wilfully,  and  maliciously  sending  to  the  said  E.  F.  a 
certain  written  communication,  which  said  written  communi- 
cation is  of  the  following  tenor,  that  is  to  say,  here  set  out  the 


'  It  is  not  necessary  to  clcseribc  the  crime  in  strict  technical  language.   Rex 
V.  Tucker,  1  Moody,  C.  C.  134. 


I 


*. 


CHAP.  XLIX.]  THREATENING   LETTER.  473 

letter  correcthj^  with  intent  thereby  then  and  there  feloni- 
ously, knowingly,  wilfully,  and  maliciously  to  extort  money 
from  the  said  E.  F. ;  against  the  peace  of  said  Common- 
wealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided. 


3.  For  sending  a  letter  threatening'  to  hum  a  divelling-hoiise. 
Mass.  Rev.  Sts.  ch.  125,  §  17. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.  late  of 
F.  in  the  county  of  M.,  laborer,  on  the  first  day  of  June  in  the 
year  of  our  Lord  ,  at  F.  in  the  county  of  M.,  feloni- 
ously, knowingly,  wilfully,  and  maliciously  did  threaten  one 
E.  F.  to  burn  and  destroy  a  certain  dwelling-house,  of  the 
property  of  the  said  E.  F.  there  situate,  by  then  and  there 
feloniously,  knowingly,  wilfully,  and  maliciously  sending  to 
the  said  E.  F.  a  certain  written  communication,  which  said 
written  communication  is  of  the  following  tenor,  that  is  to 
say,  etc.,  with  intent  thereby  then  and  there  feloniously, 
knowingly,  wilfully,  and  maliciously  to  extort  money  from 
the  said  E.  F.;  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

4.  For  sending  a  threatening  letter? 

The  jurors,  etc.,  upon  their  oath  present,  that  W.  B.  late  of 
of  B.  in  the  county  of  Surrey,  laborer,  on  the  first  day  of 

March  in  the  year  of  our  Lord ,  with  force  and  arms,  at 

B.  aforesaid,  in  the  county  aforesaid,  knowingly  and  feloni- 
ously did  send  to  one  J.  H.  a  certain  letter,  directed  to  the 
said  J.  H.,  by  the  name  and  description  of  Mr.  H.,  Esquire, 
accusing  the  said  J.  H.  of  having  committed  a  certain  crime 
punishable  by  law  with  death,  to  wit,  the  abominable  crime 


^  The  letter  must  be  set  out  correctly.    Rex  v.  Llojd,  2  East,  P.  C.  1123. 
*  1  Cox,  C.  C.  Appendix,  p.  xi. 

40* 


474  THREATENING  LETTER.  [CHAP.  XLIX. 

of  buggery,  with  the  said  W.  B.,  with  a  view  and  intent 
thereby  then  and  there  to  extort  and  gain  money  from  the 
said  J.  H.  which  said  letter  is  as  follows,  that  is  to  say : 
"  Sir,  —  I  write  to  inform  you  that  you  have  being  very 
unkind,  trying  to  your  extreme  energies  to  reflect  disparage- 
ment on  my  reputation ;  in  retalliation,  I  shall  make  known 
those  liberties  and  diabolical  actions  you  took  with  me  when 
I  was  bathing  you  in  your  room,  what  I  term  sodomiting. 
Some  compensation  I  wish  to  receive  from  your  hands,  in 
one  way  or  another.  I  am  waiting  for  an  answer  at  the  bot- 
tom of  Stockwell  Lane. —  Obedient  servant,  but  injured  W. 
B. ; "  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 


CHAPTER    L. 


PLEAS. 


1.  Plea  to  the  Jurisdiction.^ 


And  the  said  J.  S.,  in  his  own  proper  person,  cometh  into 
court  here,  and,  having  heard  the  said  indictment  read,  saith, 
that  the  Court  of  Common  Pleas  here,  ought  not  to  take 
cognizance  of  the  (burglary)  in  the  said  indictment  above 
specified  ;  because,  protesting  that  he  is  not  guilty  of  the  same, 
nevertheless  the  said  J.  S.  saith,  that,  etc.,  so  proceeding  to 
slate  the  matter  of  the  plea,  and  conclude  thus :  And  this  the 
said  J.  S.  is  ready  to  verify ;  wherefore,  he  prays  judgment  if 
the  said  Court  of  Common  Pleas  now  here  will  or  ought  to 
take  cognizance  of  the  indictment  aforesaid ;  and  that  by  the 
com't  here  he  may  be  dismissed  and  discharged,  etc. 

2.  Replication  to  the  same? 

And  hereupon  J.  N.,  the  Attorney-General  of  the  said 
State,  who  prosecutes  for  the  said  State  in  this  behalf,  says, 
that  notwithstanding  any  thing  by  the  said  J.  S.  above  in 
pleading  alleged,  this  com-t  ought  not  to  be  precluded  from 
taking  cognizance  of  the  indictment  aforesaid ;  because  he 
says  that,  etc.,  stating  the  matter  of  the  replication:  And  this 
the  said  J.  N.  prays  may  be  inquired  of  by  the  country,  etc., 
or,  if  it  conclude  with  a  verification,  then  thus :  —  And  this 


1  Archbold,  Crim.  PI.  (London  ed.  1853),  109. 

2  Archbold,  Crim.  PI.  (London  ed.  1853),  110. 


476  PLEAS.  [chap.  l. 

the  said  J.  N.  is  ready  to  verify ;  wherefore,  he  prays  judg- 
ment, and  that  the  said  J.  S.  may  answer  to  the  said  indict- 
ment. 


2.  Plea  in  abatement,  of  a  ivi'ong-  addition.^ 

And  the  said  A.  B.,  who,  in  and  by  the  said  indictment,  is 
called  by  the  name  and  addition  of  A.  B.  late  of  B.  in  the 
county  of  S.,  yeoman,  in  his  own  person  cometh,  and  having 
heard  the  said  indictment  read,  says,  that  at  the  time  of  the 
taking  the  said  indictment,  and  long  before,  the  said  A.  B. 
was  and  ever  since  hath  been,  and  still  is  inhabiting,  commo- 
rant,  and  resident,  in  F.,  in  the  county  of  B. ;  without  this,  that 
the  said  A.  B.  now  is,  or  at  the  taking  of  the  said  indictment, 
or  at  any  time  before,  was  inhabiting,  resident,  or  commorant 
at  B.  in  the  said  county  of  S.,  and  this  he  is  ready  to  verify. 
Wherefore,  and  because  the  said  A.  B.  is  not  called  in  the 
said  indictment,  A.  B.  late  of  F.  in  the  county  of  B.,  the  said 
A.  B.  prays  judgment  of  the  said  indictment,  and  that  the 
same  may  be  quashed. 

3.  Plea  in  abatement,  that  the  defendant  has  no  addition.^ 

And  the  said  A.  B.  comes  in  his  proper  person,  and  having 
heard  the  said  indictment  read,  says,  that  at  the  time  of  the 
taking  of  the  said  indictment,  and  long  before,  was  and  yet  is 
a  yeoman  ;  and  that  the  said  indictment  does  not  contain  an 
addition  of  the  said  estate  of  the  said  A.  B.,  nor  of  any  estate, 
degree,  or  mystery  of  the  said  A.  B. ;  and  this  he  is  ready  to 
verify.  Wherefore,  for  want  of  the  addition  of  the  estate, 
degree,  or  mystery  of  the  said  A.  B.  in  the  said  indictment, 
he  prays  judgment  of  the  said  indictment,  and  that  the  same 
may  be  quashed. 


'  2  Starkic,  Grim.  PI.  (London  cd.  1828),  784. 
'  2  Starkie,  Crim.  PI.  (London  cd.  1828),  785. 


CHAP.  L.]  PLEAS.  477 


4.  Plea  of  misnomer  of  the  Christian  name^ 

And  James  Long,  who  is  indicted  by  the  name  of  George 
Long,  in  his  own  proper  person  cometh  into  court  here,  and 
having  heard  the  said  indictment  read,  saith  that  he  was  bap- 
tized ^  by  the  name  of  James,  to  wit,  at  B.  aforesaid,  in  the 
county  aforesaid,  and  by  the  Christian  name  of  James,  hath 
also  since  his  baptism,  hitherto  been  called  or  known ;  with- 
out this,  that  the  said  James  Long  now  is  or  at  any  time 
hath  hitherto  been  called  or  known  by  the  Christian  name  of 
George,  as  by  the  said  indictment  is  supposed ;  and  this  the 
said  James  Long  is  ready  to  verify ;  wherefore,  he  prayeth 
judgment  of  the  said  indictment,  and  that  the  same  may  be 
quashed,  etc. 

5.  Replication.^ 

And  hereupon  J.  N.,  Attorney- General  of  said  Common- 
wealth, who  prosecutes  for  said  Commonwealth  in  this 
behalf,  saith,  that  the  said  indictment,  by  reason  ..of  any 
thing  by  the  said  James  Long  in  his  said  plea  above  alleged, 
ought  not  be  quashed ;  because  he  saith  that  the  said  James 
Long,  long  before  and  at  the  time  of  the  preferring  of  the 
said  indictment,  was,  and  still  is  known  as  well  by  the  name 
of  George  Long  as  by  the  name  of  James  Long,  to  wit,  at 
B.  aforesaid,  in  the  county  aforesaid ;  and  this  the  said  J.  N. 
prays  may  be  inquired  of  by  the  country,  etc. 


^  Archbold,  Crim.  PI.  (London  ed.  1853),  110.  A  plea  of  misnomer  can 
easily  be  framed  from  this  precedent.  If  the  defendant  pleads  not  guilty,  he 
cannot  afterwards  plead  in  abatement.  Turns  v.  The  Commonwealth,  6 
Metcalf,  235  ;  Commonwealth  v.  Dedham,  16  Massachusetts,  (Rand's  ed), 
139. 

^  It  is  not  essential  that  the  plea  should  state  that  the  defendant  was  bap- 
tized by  such  a  name  ;  saying  that  it  is  his  name,  and  by  that  name  he  was 
always  called  and  known,  is  sufficient. 

*  Archbold,  Crim.  PI.  (London  ed.  1853),  111. 


478  PLEAS.  [CIIAP.  L. 


6.  Demurrer  to  an  indictment?- 

And  the  said  J.  S.  in  his  own  proper  person  cometh  into 
court  here,  and,  having  heard  the  said  indictment  read,  saith, 
that  the  said  indictment,  and  the  matters  therein  contained, 
in  manner  and  form  as  the  same  are  above  stated  and  set 
forth,  are  not  sufficient  in  law,  and  that  the  said  J.  S.  is  not 
bound  by  the  law  of  the  land  to  answer  the  same ;  and  this 
he  is  ready  to  verify :  wherefore,  for  want  of  a  sufficient 
indictment  in  this  behalf,  the  said  J.  S.  prays  judgment,  and 
that  by  the  court  he  may  be  dismissed  and  discliarged  from 
the  said  premises  in  the  said  indictment  specified. 

7.  Joijider!^ 
And  J.  N.,  Attorney-General  of  said  Commonwealth,  who 
prosecutes  for  the  said  Commonwealth,  in  this  behalf  saith, 
that  the  said  indictment,  and  the  matters  therein  contained, 
in  manner  and  form  as  the  same  are  above  stated  and  set 
forth,  are  sufficient  in  law  to  compel  the  said  J.  S.  to  an- 
swer the  same ;  and  the  said  J.  N.,  who  prosecutes  as  afore- 
said, is  ready  to  verify  and  prove  the  same,  as  the  court 
here  shall  direct  and  award :  wherefore,  inasmuch  as  the 
said  J.  S.'  hath  not  answered  to  the  said  indictment,  nor 
hitherto  in  any  manner  denied  the  same,  the  said  J.  N.,  for 
the  said  Commonwealth,  prays  judgment,  and  that  the  said 
J.  S.  may  be  convicted  of  the  premises  in  the  said  indictment 
specified. 

8.  Demurrer  to  a  jjlea  in  bar? 

And  J.  N.,  Attorney-General  of  said  Commonwealth, 
who  prosecutes  for  1h(!  said  Commonwealth  in  this  behalf, 
as  to  the  said  j)h'a  of  the  said  J.  S.  by  him  above  pleaded, 
saith  tliat  tlie   same,  and  the   matters  therein   contained,  in 

>  Archbold,  Crim.  Tl.  (Am.  cmI.  18U1),  102. 

*  Archbold,  Criin.  I'l.  (Am.  cd.  1810),  1U3.  »  lb. 


CHAP.  L.]  PLEAS.  479 

manner  and  form  as  the  same  are  above  pleaded  and  set 
forth,  are  not  suflicient  in  law  to  bar  or  preclude  the  said 
Commonwealth,  from  prosecuting  the  said  indictment  against 
the  said  J.  S. ;  and  that  the  said  Commonwealth  is  not 
bound  by  the  law  of  the  land  to  answer  the  same ;  and  this 
the  said  J.  ,N.,  who  prosecutes  as  aforesaid,  is  ready  to  ver- 
ify :  wherefore,  for  want  of  a  sufficient  plea  in  this  behalf, 
the  said  J.  N.,  for  the  said  Commonwealth,  prays  judgment, 
and  that  the  said  J.  S.  may  be  convicted  of  the  premises  in 
the  said  indictment  specified.  A  demurrer  to  a  plea  in  abate- 
ment is  in  the  same  form,  except  that  it  concludes  ivith  praying 
judgment,  and  that  the  said  indictment  may  be  adjudged 
good,  and  that  the  said  J.  S.  may  further  answer  thereto,  etc. 

9.  Joinder.'^ 

And  the  said  J.  S.  saith,  that  his  said  plea  by  him  above 
pleaded,  and  the  matters  therein  contained,  in  manner  and 
form  as  the  same  are  above  pleaded  and  set  forth,  are  suf- 
ficient in  law  to  bar  and  preclude  the  said  Commonwealth 
from  prosecuting  the  said  indictment  against  the  said  J.  S. ; 
and  the  said  J.  S.  is  ready  to  verify  and  prove  the  same,  as 
the  said  court  here  shall  direct  and  award :  wherefore,  inas- 
much as  the  said  J.  N.  for  the  said  Commonwealth  hath  not 
answered  the  said  plea,  nor  hitherto  in  any  manner  denied 
the  same,  the  said  J.  S.  prays  judgment,  and  that  by  the  court 
here  he  may  be  dismissed  and  discharged  from  the  said  prem- 
ises in  the  said  indictment  specified.  The  joinder  is  the  same, 
if  the  demurrer  he  to  a  plea  in  abatement,  except  that  it  con- 
cludes ivith  prayiiig-  judgment,  and  that  the  said  indictment 
may  be  quashed,  etc. 

10.  Special  pleas? 

And  the  said  J.  S.  in  his  own  proper  person  cometh  into 
court  here,  and,  having  heard  the  said  indictment  read,  saith, 

1  Archbold,  Cr'im.  PI.  (Am.  ed.  1846),  103. 
-  Archbold,  Crim.  PI.  (Am.  ed.  1846),  105. 


480  PLEAS.  [chap.  l. 

that  the  said  Commonwealth  ought  not  further  to  prosecute 
the  said  indictment  against  the  said  J.  S. ;  because  he  saith, 
that,  etc.,  so  proceedings  to  state  the  matter  of  the  plea;  and 
concluding  thus :  And  this  the  said  J.  S.  is  ready  to  verify  ; 
wherefore  he  prays  judgment,  and  that  by  the  court  here  he 
may  be  dismissed  and  discharged  from  the  said  premises  in 
the  said  indictment  above  specified. 


11.  Replication.^ 

And  hereupon  J.  N.,  Attorney-General  of  the  said  Com- 
monwealth, who  prosecutes  for  the  said  Commonwealth  in 
this  behalf,  says,  that,  by  reason  of  any  thing  in  the  said  plea 
of  the  said  J.  S.  above  pleaded  in  bar  alleged,  the  said  Com- 
monwealth ought  not  to  be  precluded  from  prosecuting  the 
said  indictment  against  the  said  J.  S. ;  because  he  says,  that, 
etc.,  so  proceeding  to  state  the  matter  of  the  replication ;  and 
concluding  thus:  And  this  the  said  J.  N.  prays  may  be 
inquired  of  by  the  country.  Or,  if  it  conclude  with  a  verifica- 
tion, then  thus :  And  this  the  said  J.  N.  is  ready  to  verify ; 
wherefore  he  prays  judgment,  and  that  the  said  J.  S.  may  be 
convicted  of  the  premises  in  the  said  indictment  above 
specified. 

If  the  replication  conclude  to  the  country,  the  similiter  is 
then  added,  in  making  up  the  record  :  "  And  the  said  J.  S.  doth 
the  like.  Therefore  let  a  jury  come,"  etc.,  so  proceeding  with 
the  award  of  the  venire.  But  if  the  replication  conclude 
with  a  verification,  the  defendant  must  then  rejoin. 

12.  Rejoinder. 

And  tlie  said  J.  S.,  as  to  the  said  replication  of  the  said  J. 
N.  to  the  said  pk^a  by  the  said  J.  S.,  saith,  that  the  Com- 
monwealth by  reason  of  any  thing  by  the  said  J.  N.  in  that 
replication  alleged,  ought  not  further  to  prosecute  the  said 
indictment  against  the  said  .1.  S. ;  because  he  saith,  that,  etc., 

'  Archbokl,  Criin.  Tl.  (Am.  cd.  18 IG),  105. 


CHAP.  L.]  PLEAS.  481 

SO  proceeding  to  state  the  matter  of  the  rejoinder^  and  conclud- 
ing thus  :  And  of  the  said  S.  puts  himself  upon  the  coun- 
try. Or,  if  it  be  necessary  to  conclude  with  a  verification, 
the  conclusion  may  be  in  the  same  form  as  in  a  plea. 


13.  Autrefois  acquits 

And  the  said  Robert  Courtice  Bird,  and  the  said  Sarah,  the 
said  wife  of  the  said  Robert  Courtice  Bird,  in  their  own 
proper  persons,  now  come  into  court  here,  and  having  heard 
the  said  indictment  read  and  the  matters  therein  contained, 
say  that  they  ought  not  to  be  put  to  answer  the  said  indict- 
ment, they  having  been  heretofore,  in  due  manner  of  law,  ac- 
quitted of  the  premises  in  and  by  the  said  indictment  above 
specified  and  charged  upon  them  ;  and  for  plea  to  the  said  in- 
dictment they  say,  that  the  said  Commonwealth  ought  not 
further  to  prosecute  the  said  indictment  against  them,  because 
they  say  that  heretofore,  to  wit,  at  the,  here  set  forth  the  cap- 
tion of  the  courts  verbatim^  the  said  Robert  Courtice  Bird  and 
the  said  Sarah,  the  said  wife  of  the  said  Robert  Courtice 
Bird,  stood  indicted,  and  were  duly  arraigned  upon  a  certain 
indictment  which  charged  the  said  Robert  Courtice  Bird  and 
the  said  Sarah,  the  said  wife  of  the  said  Robert  Courtice 
Bird,  by  the  names  and  descriptions  of  Robert  Courtice  Bird, 
late  of  the  parish  of  Buckland  Brewer,  in  the  county  of 
Devon,  laborer,  and  Sarah,  the  wife  of  the  said  Robert  Cour- 
tice Bird,  late  of  the  same  parish,  for  that  the  said  Robert 
Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the  said 
Robert  Courtice  Bird,  etc.,  setting  out  the  indictment  in  full.,  ut 
ante,  p.  298.  And  the  said  Robert  Courtice  Bird,  and  the  said 
Sarah,  the  said  wife  of  the  said  Robert  Courtice  Bird,  further 
say,  that  the  said  felony  and  murder  so  charged  upon  them 
in  the  said  last-mentioned  indictment  as   aforesaid,  inclnded 


^  This  plea  is  taken  from  the  case  of  Regina  u.  Bird,  5  Cox,  C.  C.  12; 
2  Eng.  Law  and  Eq.  Eep.  440  ;  1  Temple  &  Mew,  C.  C.  438,  note  ;  and  was 
drawn  by  jMr.  Kingdon,  whose  well-known  abilities  as  a  special  jjleader  give 
it  a  peculiar  value  as  a  precedent. 

41 


482  PLEAS.  [chap.  l. 

divers  assaults  therein  supposed  and  alleged  to  have  been 
made  and  committed  by  the  said  Robert  Courtice  Bird  and 
the  said  Sarah,  the  wife  of  the  said  Robert  Courtice  Bird, 
against  the  person  of  the  said  Mary  Ann  Parsons,  in  the  said 
indictment  named.  And  the  said  Robert  Courtice  Bird  and 
the  said  Sarah,  the  wife  of  the  said  Robert  Courtice  Bird,  fur- 
ther say,  that  they  did  then  and  there  respectively  plead  not 
guilty  to  the  said  last-mentioned  indictment,  and  that  they 
were  thereupon  then  and  there,  in  due  form  of  law  respect- 
ively tried  upon  the  said  last-mentioned  indictment  by  a  jury 
of  the  said  county  then  and  there  in  due  form  of  law  sum- 
moned, impanelled,  and  sworn  to  speak  the  truth  of  and  con- 
cerning the  premises  in  the  said  last-mentioned  indictment 
mentioned,  and  to  try  the  said  issues  so  joined  between  our 
sovereign  Lady  the  Queen  and  the  said  Robert  Courtice 
Bird  and  the  said  Sarah,  the  said  wife  of  the  said  Robert 
Courtice  Bird,  respectively  as  aforesaid,  and  which  said  jury 
upon  tlieir  oaths  did  then  and  there  say  that  the  said  Robert 
Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the  said 
Robert  Courtice  Bird,  respectively  were  not  guilty  of  the 
premises  in  the  said  last-mentioned  indictment  specified  and 
charged  on  them  respectively  as  aforesaid,  as  the  said  Robert 
Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the  said 
Robert  Courtice  Bird,  by  their  pleas  to  the  said  last-men- 
tioned indictment  respectively  alleged,  whereupon  it  was  then 
and  there  considered  by  the  said  last-mentioned  court  that  the 
said  Robert  Courtice  Bird  and  the  said  Sarah,  the  said  wife 
of  the  said  Robert  Courtice  Bird,  of  the  premises  aforesaid, 
in  the  said  last-mentioned  indictment  specified  and  charged 
on  them  respectively  as  aforesaid,  should  be  discharged  and 
go  acquitted  thereof  without  day,  as  by  the  record  of  the 
said  proceedings  now  here  apjDcars.  And  the  said  Robert 
Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the  said 
Robert  Courtice  Bird,  further  say,  that  the  said  Robert  Cour- 
tice Bird  and  the  said  Sarah,  the  said  wife  of  the  said  Robert 
Courtice  Bird,  now  here  ])leaditig,  and  the  said  Robert  Cour- 
tice Bird  and  the  said  S:ii:di,  llic  said  wife  of  the  said  Robert 
Courtice  Bird,  in  the  indictment  aforesaid  named  and  thereof 


CHAP.  L.]  PLEAS.  483 

acquitted  as  aforesaid,  are  respectively  the  same  identical  per- 
sons respectively,  and  not  other  or  different  persons  respect- 
ively, and  that  the  said  Mary  Ann  Parsons,  in  the  said  last- 
mentioned  indictment  named  is  the  same  identical  Mary  Ann 
Parsons   as  is   named  in  the  indictment  to  which  the  said 
Robert  Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the 
said  Robert  Courtice  Bird,  are  now  here  pleading ;  and  that 
the  said  assaults  so  included  in  the  said  felony  and  murder  so 
charged  upon  the  said  Robert  Courtice  ^ird  and  the  said 
Sarah,  the  said  wife  of  the  said   Robert  Courtice   Bird,  are 
now  here  pleading;  and  that  the  said   assaults  so  included 
in    the    said    felony    and    murder   so    charged    upon    them, 
the  said  Robert  Courtice  Bird  and  the   said  Sarah,  the  said 
wife  of  the  said  Robert  Courtice  Bird,  in  the  said  indictment 
in  this  plea  mentioned  in  this  behalf,  and  therein  supposed 
and   alleged  to  have  been  made   and  committed  by  them 
against  the  person  of  the  said  Mary  Ann  Parsons  as  afore- 
said, are  the  same  identical  assaults,  beatings,  ill-treatings, 
and  woundings   respectively  as   in  the  said   indictment   to 
which  the  said  Robert  Courtice  Bu-d  and  the  said  Sarah,  the 
said  wife  of  the  said  Robert  Courtice  Bird,  are  now  here 
pleading,  are  respectively  supposed  and  alleged  to  have  been 
made,  done,  given,  and  committed  respectively  by  the  said 
Robert  Courtice  Bird  and  the  said  Sarah,  the  said  wife  of  the 
said  Robert  Courtice  Bird,  respectively,  and  not  other  or  dif- 
ferent.    Wherefore,  they  pray  judgment  of  the  court  here, 
whether  the  said  Commonwealth  will  or  ought  further  to 
prosecute,   impeach,   or  charge    them,    on    account    of    the 
premises  in  the  said  indictment,  to  which  they  are  now  here 
pleading,  contained  and  specified,  and  whether  they  ought  to 
answer  thereto  respectively,  and  that  they  may  be  dismissed 
this  court  without  delay. 


484  PLEAS  [CIIAP.  L. 


14.  Another  precedent  for  the  same} 

And  the  said  William  Sheen  the  younger,  being  brought 
to  the  bar  of  this  court,  and  having  heard  the  said  indict- 
ment read,  and  the  matters  therein  contained,  says  that  he 
ought  not  to  be  put  to  answer  the  said  indictment,  he  having 
been  heretofore,  in  due  manner  of  lavv^,  acquitted  of  the 
premises  in  and  by  the  said  indictment  above  specified  and 
charged  upon  him ;  and  for  plea  to  the  said  indictment,  he 
says,  that  heretofore,  to  wit,  at  the  Supreme  Judicial  Court, 
begun  and  holden  at,  etc.,  here  set  forth  the  caption  of  the 
court  verbatim,  the  said  William  Sheen  the  younger,  was 
duly  arraigned  upon  a  certain  indictment,  which  charged 
him,  the  said  William  Sheen  the  younger,  by  the  name  and 
description  of  William  Sheen  the  younger,  late  of  B.  in  the 
county  of  M.,  laborer,  here  set  out  the  former  indictment  ver- 
batim, concluding  ivith  the  words,  against  the  peace,  etc.,  to 
which  said  last-mentioned  indictment,  he  did  then  and  there 
plead  not  guilty,  and  thereupon  a  jury  then  and  there  duly 
summoned,  impanelled,  and  s\vorn  to  try  the  said  issue  so 
joined  between  the  said  Commonwealth  and  the  said  William 
Sheen  the  younger ;  upon  their  oaths  did  say,  that  the  said 
William  Sheen  the  younger,  was  not  guilty  of  the  said  felony 
and  murder  by  the  said  indictment  supposed  and  laid  to  his 
charge ;  whereupon  it  was  then  and  there  considered  by  the 
said  court,  that  the  said  William  Sheen  the  younger,  should 
go  thereof  acquitted  without  day,  as  appears  by  the  record  of 
the  said  proceedings  now  here  remaining  in  court.  And  the 
said  William  Sheen  the  younger,  avers  that  the  said  William 
Sheen  the  younger,  mentioned  in  the  former  indictment,  and 
the  said  William  Sheen  the  younger,  who  is  charged  by  this 
present  indictment,  are  one  and  the  same  person,  and  not 
divers  and  dillcrciit,  |)ersons,  and  that  llie  said  infant  men- 
tioncfl  in  the  said  first  indictnicnt,  and  1h(>  male  child  in  this 


'  Rex  V.  Shcon,  2  Carriiigton  &  Taync,  C31,  C35. 


CHAP.  L.]  PLEAS.  485 

present  indictment  mentioned,  are  one  and  the  same  male 
child,  and  not  divers  and  different  children ;  and  the  said  Wil- 
liam Sheen  the  younger,  further  avers  that  the  felony  and 
murder  in  the  said  former  mentioned  indictment  mentioned, 
and  the  felony  and  murder  in  this  present  indictment  men- 
tioned, are  one  and  the  same  felony  and  murder,  and  not 
divers  and  different  felonies  and  murders.  And  the  said  Wil- 
liam Sheen  the  younger  further  avers,  that  the  said  male 
child,  described  by  the  name  of  Charles  William  Beadle  in 
the  said  former  indictment  mentioned,  was  as  well  known  by 
the  said  name  of  Charles  William  Beadle,  as  by  any  of  the 
several  names  and  descriptions  of  Charles  William,  William, 
Billy,  Charles,  or  William  Sheen,  or  a  certain  male  bastard 
child,  as  he  is  in  and  by  the  present  indictment  described ; 
and  this  he  is  ready  to  verify.  Wherefore,  the  said  William 
Sheen  the  younger,  prays  the  judgment  of  the  court  here,  if 
he  ought  to  be  put  further  to  answer  this  present  indictment. 
And  whether  the  said  Commonwealth  will  or  ought  further 
to  prosecute  or  impeach  him,  the  said  William  Sheen  the 
younger,  on  account  of  the  premises  in  this  present  indict- 
ment contained.  And  that  he  may  be  dismissed  the  court 
and  go  without  day. 

15.  Replication. 

And  Thomas  Shelton,  the  Attorney- General  of  said  Com- 
monwealth, who  prosecutes  for  said  Commonwealth  on  this 
behalf,  says  that  the  said  Commonwealth  ought  not  to  be 
barred  from  further  prosecuting  the  said  indictment,  because 
he  saith  that  William  Sheen  the  younger,  was  not  heretofore 
acquitted  of  the  premises,  charged  in  and  upon  him  by  this 
present  indictment ;  for,  although  true  it  is,  that  the  said  Wil- 
liam Sheen  the  younger,  was  acquitted  upon  the  said  indict- 
ment in  his  said  plea  mentioned,  and  although  true  it  is,  that 
the  said  infant  in  the  said  former  indictment  mentioned,  and 
the  male  child  in  this  present  indictment  mentioned,  is  the 
same  child,  and  not  another  and  different  child  ;  yet  for  replica- 
tion in  this  behalf,  he  says,  that  the  said  male  child  was  not 

41* 


486  PLEAS.  [chap.  l. 

known  as  well  by  the  name  of  Charles  William  Beadle,  as 
by  any  or  either  of  the  several  names  by  which  he  is  named 
in  the  present  indictment ;  and  this  the  said  Thomas  Shelton, 
on  behalf  of  said  Commonwealth,  prays  may  be  inquired  of 
by  the  country. 


16.  Autrefois  convict. 

And  the  said  C.  D.  in  his  own  proper  person  cometh  into 
court  here,  and  having  heard  the  said  indictment  read,  saith 
that  the  said  Commonwealth  ought  not  further  to  prosecute 
the  said  indictment,  against  the  said  C.  D.  in  respect  of  the 
offence  in  the  said  indictment  mentioned,  because  he  saith, 
that  heretofore,  to  wit,  at  the  Supreme  Judicial  Court,  begun 
and  holden  at,  etc.,  set  forth  the  former  judgment  and  convic- 
tion verbatim,  and  then  proceed  as  follows  :  as  by  the  record 
thereof,  in  the  said  court  remaining,  more  fully  and  at  large 
appears,  which  said  judgment  and  conviction  still  remain 
in  full  force  and  effect,  and  not  in  the  least  reversed  or  made 
void.  And  tl^e  said  C.  D.  further  saith  that  the  said  C.  D., 
and  the  said  C.  D.  so  indicted  and  convicted  are  one  and  the 
same  person,  and  not  other  or  different.  And  the  said  C.  D. 
further  saith  that  the  burglary  of  which  the  said  C.  D.  was  so 
indicted  and  convicted  as  aforesaid,  and  the  burglary  for 
which  he  is  now  indicted,  are  one  and  the  same  burglary,  and 
not  other  or  different.  And  this  the  said  C.  D.  is  ready  to 
verify;  wherefore  he  prays  judgment  if  the  said  Common- 
wealth ought  further  to  prosecute  the  said  indictment  against 
the  said  C.  D.  in  respect  of  the  said  offence  in  the  said  indict- 
ment mentioned,  and  that  the  said  C.  D.  may  be  dismissed 
and  discharged  from  the  same.  And  as  to  the  felony  and 
burglary  aforesaid  in  the  said  indictment  mentioned,  the  said 
C.  I),  saith  ho  is  not  guilty  thereof,  and  therefore  i)uts  himself 
uj)()n  the  country,  etc. 


CHAP.  L.]  PLEAS.  487 


17.  Replication.^ 

And  hereupon  the  said  J.  H.  C,  Attorney- General  of  said 
Commonwealth,  who  prosecutes  for  said  Commonwealth  in 
this  behalf,  says  that  by  reason  of  any  thing  in  the  said  pica  of 
the  said  C.  D.  above  pleaded  in  bar  alleged,  the  said  Common- 
wealth ought  not  to  be  precluded  from  prosecuting  the  said 
indictment  against  the  said  C.  D. ;  because  he  says,  that  there 
is  not  any  record  of  the  said  supposed  conviction  in  manner 
and  form  as  the  said  C.  D.  hath  above  in  his  said  plea 
alleged ;  and  this  the  said  J.  H.  C.  prays  may  be  inquired  of 
by  the  country,  etc. 


1  Archbold,  Crim.  PI.  (London  ed.  1853),  121. 


INDEX 


TO    PRECEDENTS, 


A. 

ABATEMENT. 

Plea  in,  of  a  wrong  addition,  476. 
That  the  defendant  has  no  addition,  476. 
Of  misnomer  of  the  Christian  name,  477. 
RepUcation,  47  7. 

ABDUCTION. 

Of  an  unmarried  woman  for  the  purpose  of  prostitution,  2. 

Of  an  unmarried  woman  under  the  age  of  sixteen  years,  for  the  pur- 
pose of  effecting  a  clandestine  marriage,  2. 

For  a  conspiracy  to  procure  the  abduction  of  a  female.  First  Count  on 
St.  4  and  5  P.  and  M.  eh.  8.  Did,  for  lucre,  unlawfully  conspire,  by 
false  representations,  to  take  E.  T,  a  girl  under  sixteen,  from  the 
care  of  M.  D.,  and  to  contract  matrimony  with  E.  G.  W.,  to  the  utter 
heaviness  of  her  father,  3. 

Second  Count,  on  4  and  5  Philip  and  Mary,  ch.  8.  Did,  for  lucre,  un- 
lawfully conspire  to  take  E.  T.  from  the  care  of  M.  D.,  to  the  great 
disparagement  of  the  said  E.  T.,  5. 

Third  Count,  on  St.  Henry  7,  ch.  2.  Did,  for  lucre,  conspire  to  felo- 
niously take  and  convey  away  E.  T.,  an  heiress,  and  marry  her ;  to 
the  disparagement  of  herself  and  discomfort  of  her  friends,  6. 

Fourth  Count,  on   St.   3   Henry   7,  ch.  2.     Did,  for  lucre,  unlawfully 


490  IXDEX   TO   PKECEDENTS. 

conspire  to  marry  E.  T.,  the  only  child  of  W.  T.,  a  man  of  large 
estate,  to  E.  G.  W.,  with  intent  to  procure  for  the  said  E.  G.  W.,  the 
said  estate  ;  to  the  great  damage  of  W.  T.,  7. 
Fifth  Count,  on  St.  3  Henry  7,  ch.  2.  Did  conspire  to  procure  E.  T., 
an  heiress,  to  marry  E.  G.  W.,  -without  the  knowledge  of  her  father ; 
to  the  great  disparagement  of  E.  T.,  8. 

ABORTION. 

For  administering  poison  to  procure  miscarriage,  9. 
For  using  instruments  to  procure  miscarriage,  10. 
For  circulating  an  advertisement  relative  to  procuring  abortion,  11. 
Indictment  against  the  principal  for  using  an  instrument  to  procure 
abortion,  and  against  an  accessory  before  the  fact,  11. 

ACCESSORY. 

Against  the  principal  in  the  second  degree,  14. 

Against  an  accessory  before  the  fact,  together  with  the  principal,  15. 

Against  an  accessory  before  the  fact,  the  principal  being  convicted,  15. 

Against  an  accessory  before  the  fact,  16. 

Against  an  accessory  before  the  fact,  as  for  a  substantive  felony,  1 7. 

For  soliciting  a  person  to  commit  an  offence,  1 7. 

Against  an  accessory  after  the  fact,  with  the  principal,  18. 

Against  an  accessory  after  the  fact,  the  principal  being  convicted,  18. 

Against  an  accessory  after  the  fact,  19. 

For  administering  chloroform  with  intent  to  commit  a  felony,  21. 

ADULTERY. 

Adultery  by  a  married  man  with  an  unmarried  woman,  23. 

Against  both  parties  jointly,  24. 

Adultery  by  an  unmarried  man  with  a  married  woman,  24. 

AFFRAY. 

Indictment  for  an  affray,  27. 

ARSON  AND  OTHER  BURNING. 

Ar.-^on  at  common  law,  32. 

For  burning  a  dwelling-house  in  the  night  time,  32. 

For  setting  fire  to  a  building,  whereby  a  dwelling-house  was  burnt  in 

the  night  time,  33. 
For  burning  a  dwelling-house  in  the  daytime,  33. 
For  setting  fire  to  a  Ijuilding  adjoining  a  dwelling-house  in  the  daytime, 

whereby  a  dwelling-liouse  was  l)urnt  in  the  daytime,  34. 
For  burning  a  city  hall  in  the  night  time,  35. 
For  burning  a  meeting-house  in  the  daytime,  35. 


INDEX   TO   rPvECEDENTS.  491 

For  burning  a  building  erected  for  a  dwelling-house,  and  not  completed 
or  inhabited,  36. 

For  burning  a  vessel  lying  within  the  body  of  the  county,  36. 

For  burning  a  dwelling-house  with  intent  to  injure  an  insurance  com- 
pany, 37. 

For  setting  fire  to  stacks  of  hay,  37. 

ASSAULT. 

For  an  assault,  not  accompanied  with  a  battery,  38. 
For  a  common  assault  and  battery,  39. 
For  an  assault  and  false  imprisonment,  3!). 
For  throwing  corrosive  fluid  with  intent,  etc.,  40. 
For  an  assault  upon  a  woman  pregnant  with  child,  40. 
For  an  indecent  assault,  41. 

For  an  indecent  assault  with  intent  to  have  improper  connection,  41. 
For  an  indecent  assault  by  other  means,  42. 
For  a  felonious  assault  with  intent  to  maim,  42. 
For  a  felonious  assault  with  intent  to  muixler,  43. 
For  a  felonious  assault  with  intent  to  commit  a  rape,  45. 
■  For  a  felonious  assault  with  intent  to  abuse  a  child  under  the  age  of  ten 

years,  45. 
For  a  felonious  assault  upon  a  boy  with  intent  to  commit  the  crime 

against  nature,  46. 
For  a  felonious  assault  with  intent  to  rob,  being  armed,  46. 
For  assaulting  and  obstructing  an  officer  in  the  discharge  of  his  duties, 

47. 

ATTEMPTS  TO  COIVOIIT  CREVIES. 

For  an  attempt  to  burn  a  dwelling-house,  50. 

For  an  attempt  to  burn  a  dwelling-house  in  the  night  time,  by  breaking 

and  entering  a  building,  and  setting  fire  to  the  same,  51. 
For  an  attempt  to  commit  larceny  from  the  person  of  an  individual,  by 

picking  his  pocket,"52. 
For  an  attempt  to  murder  by  drowning,  52. 
For  an  attempt  to  murder  by  poisoning,  53. 
For  attempting  to  commit  suicide,  53. 

AUTREFOIS  ACQUIT. 

Plea  of,  481. 

Another  precedent  for  the  same,  484. 

Replication,  485. 

AUTREFOIS  CONVICT. 
Plea  of,  486. 
Replication,  487. 


492  INDEX   TO    PRECEDENTS. 


B. 

BARRATRY. 

Indictment  for  being  a  common  barrator,  58. 

BLASPHEMY. 

Indictment  for  a  blasphemous  libel,  60. 

For  blasphemy,  by  blaspheming  the  holy  name  of  the  Lord,  60. 

BRIBERY. 

Indictment  for  attempting  to  bribe  a  constable,  62. 

BURGLARY. 

Indictment  for  burglary  and  larceny,  76. 

For  burglary,  by  breaking  out  of  a  house,  77. 

For  burglary  and  larceny  and  assault  with  intent  to  commit  murder,  77. 

For  burglary  with  violence,  78. 

For  burglary  and  rape,  79. 

For  burglary  with  intent  to  ravish ;  with  a  count  for  burglary  with  vio- 
lence, under  St.  7  Wm.  and  1  Vict.  ch.  86,  §  2,  79. 

For  burglary  and  larceny  at  common  law,  by  breaking  into  a  parish 
church ;  with  a  count  uj^on  the  St.  7  and  8  Geo.  4,  ch.  29,  for  sacri- 
lege, in  breaking  out  of  a  church  after  the  committal  of  larceny 
therein,  80. 

For  being  in  a  dwelling-house  with  intent  to  commit  felony,  and  break- 
ing out  contrary  to  the  St.  7  and  8  Geo.  4,  ch.  29,  §  11,  81. 

For  burglary  with  intent  to  commit  felony,  lading  also  burglary  with  vio- 
lence, 81. 

Burglary,  laying  an  accessory  before  and  after  the  fact,  82. 

For  having  in  possession  implements  of  burglary,  83. 

For  being  found  by  night  armed  with  intent  to  break  into  a  dwelling- 
house  and  commit  a  felony  therein,  84. 

c. 

CHEATS  AT  COMMON  LAW,  AND  STATUTORY  CHEATS  BY 
FALSE  rRETEX(;ES. 

Indictment  at  common  law  for  selling  by  false  scales,  95. 

Obtaining  goods  by  false  prclences,  96. 

For  obtaining  money  on  a  liilse  representation  respecting  the  value  and 

history  of  a  house  which  the,  prisoner  sold  to  the  jtrosectitor,  9  7. 
For  obtaining  money  by  falsely  pretending  that  cerUiin  proi)erty  of  the 


INDEX   TO   PRECEDENTS.  493 

defendant  was  unincumbered,  and  that  he  himself  was  free  from  debts 
and  liabilities,  100. 

Against  a  defendant  for  obtaining  money  by  falsely  pretending  that  he 
had  then  purchased  certain  property,  which  it  Avas  necessary  he  should 
immediately  pay  for,  104. 

For  obtaining  money  by  the  false  pretence  on  the  part  of  the  defend- 
ant, that  he  was  entitled  to  gi-ant  a  lease  of  certain  freehold  prop- 
erty, 107. 

For  obtaining  money  by  falsely  pretending  that  the  defendant  was  the 
authorized  agent  of  the  Executive  Committee  of  the  Exhibition  of  the 
Works  of  Industry  of  all  Nations,  and  that  he  had  power  to  allot 
spaces  to  private  individuals  for  the  exhibition  of  their  merchandise, 
109. 

Against  the  defendants  for  obtaining  money  under  false  pretences ;  the 
false  pretences  being,  that  one  of  the  defendants  having  advanced 
money  to  the  other  on  a  deposit  of  certain  title  deeds,  had  himself 
deposited  the  deeds  with  a  friend,  and  that  he  required  a  sum  of 
money  to  redeem  them  ;  with  counts  for  conspiracy,  115. 

Obtaining  money  and^goods  by  means  of  a  flash  note,  120. 

Obtaining  money  by  means  of  a  promissory  note  of  a  bank  which  has 
stopped  payment,  121. 

Obtaining  goods  by  a  check  on  a  bank  where  the  defendant  had  no 
effects,  122. 

Obtaining  money  by  false  statement  of  authority  to  receive  debts,  123. 

Obtaining  money  by  pretence  of  payment  to  a  third  person,  124. 

Obtaining  money  by  false  pretences  as  to  the  name  and  circumstances 
of  the  defendant,  124. 

Obtaining  money  by  personating  another,  1 25. 

Obtaining  money  by  false  representations  as  to  the  employment  and 
condition  of  the  defendant,  126. 

Obtaining  a  horse  by  false  representations,  127. 

Obtaining  goods  by  falsely  pretending  that  the  defendant  was  a  trader 
in  solvent  circumstances. 

Obtaining  money  by  false  allegations  of  the  delivery  of  goods,  1 28. 

Obtaining  money  by  false  pretence  as  to  the  amount  due  for  carriage 
of  a  parcel,  129. 

Obtaining  money  by  rendering  a  false  account  of  work  done  by  third 
parties,  130. 

Obtaining  money  by  falsely  pretending  that  a  member  of  a  Friendly 
Society  was  indebted  to  the  Society,  131. 

Falsely  pretending  that  the  Rules  of  a  Friendly  Society  had  been  duly 
certified,  131. 

Obtaining  money  by  means  of  a  false  warranty  of  the  weight  of  goods, 
133. 

Obiainihg  money  by  a  false  warranty  of  goods,  133. 

42 


494  INDEX   TO   PRECEDENTS. 

Falsely  pretending  that  goods  were  of  a  particular  quality,  134. 
Attempting  to  obtain  money  by  means' of  false  pretences,  135. 

COMPOUNDING  OFFENCES. 

Indictment  for  compounding  a  felony,  138. 

CONSPIRACY. 

For  a  conspiracy  to  indict  prosecutors  for  keeping  a  bawdy-house,  and 
extorting  money  from  them  on  condition  that  such  prosecution  should 
be  foregone,  145. 
•  For  a  conspiracy  to  defraud  a  railway  company  by  travelling  without 
a  ticket  on  some  portion  of  the  line,  obtaining  a  ticket  at  an  inter- 
mediate station,  and  then  delivering  It  up  at  the  terminus,  as  if  no 
gi'eater  distance  had  been  travelled  over  by  the  passenger  than  from 
such  intermediate  station  to  the  terminus,  150. 

For  a  conspiracy  to  Induce  a  person  of  unsound  mind  to  sign  a  paper 
authorizing  the  defendants  to  take  possession  of  his  goods,  156. 

For  conspiracy  to  defeat  the  course  of  public  justice,  by  giving  false 
evidence,  and  suppressing  facts,  on  an  inquiry  into  a  charge  of  felony 
before  a  magistrate,  158. 

For  a  consjiiracy  by  the  maker  of  two  promissory  notes,  and  two  other 
persons,  fraudulently  to  obtain  said  notes  from  the  holder,  161. 

Against  two  persons  for  conspiracy  to  procure  the  defilement  of  a  young 
female,  164. 

For  a  conspiracy  to  procure  the  defilement  of  a  female,  165. 

For  conspiring  wrongfully  to  charge  the  Inhabitants  of  a  parish  with  the 
maintenance  of  a  child,  166. 

For  conspiracy  to  defraud  intending  emigrants  of  their  passage-money 
by  pretending  to  have  an  interest  in  certain  ships,  168. 

For  a  conspiracy,  by  false  representations,  to  Induce  a  party  to  forego 
a  claim,  174. 

D. 

DEMURRER. 

Demurrer  to  an  indictment,  478. 
Joinder,  4  78. 

Demurrer  to  a  plea  in  bar,  478. 
Joinder,  479. 

DISTURBANCE  OF  PURLIC  MEETINGS,  ETC. 
For  disturbing  a  school,  1  76. 

For  disturbing  a  funeral  procession  by  fast  driving,  177. 
For  <lIsLurl)iiig  religious  worship,  177. 
For  disorderly  conduct  at  an  election,  178. 


INDEX   TO   PRECEDENTS.  495 


DUELLING  AND  CHALLENGING  TO  FIGHT. 
For  murder  in  a  duel  fought  without  the  State,  179. 
For  sending  a  written  message  to  a  person,  to  fight  a  duel,  ISl. 
For  posting  another  for  not  fighting  a  duel,  181. 

E. 

ELECTIONS. 

Against  a  person  for  voting,  knowing  himself  not  to  be  a  qualified  voter, 
183. 

Against  a  person  for  giving  in  more  than  one  ballot  at  one  time  of  bal- 
loting, 183. 

Against  a  person  for  giving  false  answers  to  the  selectmen  presiding  at 
an  election,  in  order  to  procure  Iiis  name  to  be  inserted  on  the  list  of 
voters,  and  to  obtain  permission  to  vote,  184. 

For  attempting  to  influence  a  voter  by  threatening  to  discharge  him 
from  employment,  185. 

EMBEZZLEMENT. 

Against  the  president  and  cashier  of  a  bank  for  an  embezzlement,  187. 
Against  a  clerk  for  embezzlement,  180. 
Against  a  carrier  for  embezzlement,  191. 

EMBRACERY. 

Indictment  for  embracery,  by  persuading  a  juror  to  give  his  verdict  in 
favor  of  the  defendant,  and  for  soliciting  other  jurors  to  do  the  like, 
193. 

ESCAPE. 

Indictment  against  a  constable  for  a  negligent  escape,  195. 

Another  precedent  for  the  same,  196. 

For  not  conveying  an  offender  to  prison,  179. 

Indictment  for  escaping  out  of  the  custody  of  a  constable,  199. 

Indictment  against  a  jailer  for  a  voluntary  escape,  199. 

Indictment  for  breaking  prison,  200. 

For  conveying  instruments  to  a  prisoner  to  enable  him  to  escape,  202. 

EXTORTION. 

Indictment  asjainst  a  constable  for  extortion,  203. 


496  INDEX-  TO    PRECEDENTS. 


FOECIBLE  ENTRY  AXD  DETAINER. 

For  forcible  entry  and  detainer  at  common  law,  20S. 

For  forcible  entry  into  a  freehold  on  St.  5,  R.  2,  ch.  8,  209. 

Indictment  for  a  forcible  entry  Into  a  leaseliold,  etc.,  on  St.  21,  J.  1,  cb. 

15,  210. 
For  a  forcible  detainer  on  St.  8  H.  6,  ch.  9,  or  21  J.  1,  cli.  10,  210. 

FORGERY  AND  COUNTERFEITING. 

Forgery  at  common  law,  223. 

For  uttering  and  publishing  as  true  a  forged  promissory  note,  224. 

For  forging  a  promissory  note,  22-1. 

For  counterfeiting  a  bank-bill,  225. 

For  having  in  possession  at  the  same  time,  ten  or  more  counterfeit  bank- 
bills  with  intent  to  utter  and  pass  the  same  as  true,  225. 

For  passing  a  counterfeit  bank-bill,  226. 

For  having  in  possession  a  counterfeit  bank-bill  with  intent  to  pass  the 
same,  227. 

For  making  a  tool  to  be  used  in  counterfeiting  bank-notes,  228. 

For  having  in  possession  a  tool  to  be  used  in  counterfeiting  bank-notes 
with  intent  to  use  the  same,  229. 

For  counterfeiting  current  coin,  229. 

For  having  ten  counterfeit  pieces  of  coin  with  intent  to  pass  the  same, 
230. 

For  having  less  than  ten  counterfeit  pieces  of  coin  with  intent  to  pass 
the  same  as  true,  230. 

For  uttering  and  passing  counterfeit  coin,  231. 

For  having  in  possession  tools  for  coining  witli  intent  to  use  the  same, 
231. 

FORNICATION. 

Indictment  for  fornication,  233. 

FRAUDULENT  CONVEYANCE. 

Indictment  for  a  fraudulent  conveyance,  St.  13  Ellz.  ch.  5,  §  3,  231. 

H. 

1I0.M1C1DE. 

For  manslaughter  against  the  engineer  of  a  steamboat,  for  so  negligently 
managing  tlie  engine  that  the  boiler  burst,  and  thereby  caused  the 
death  of  a  passenger,  25 1. 


INDEX   TO   PRECEDENTS.  497 

For  manslaughter  by  neglect  to  give  a  proper  signal  to  denote  the  ob- 
struction of  a  line  of  railway,  "vvlicreby  a  collision  took  place  and  a 
passenger  was  killed,  2G3. 

For  manslaughter  against  the  driver  and  stoker  of  a  railway  engine,  for 
negligently  driving  against  another  engine,  whereby  the  deceased 
met  his  death,  271. 

For  manslaughter  against  the  keeper  of  an  asylum  for  pauper  children, 
for  not  supplying  one  of  them  with  proper  food  and  lodging,  whereby 
the  child  died,  283. 

Indictment  for  murder,  by,  ialer  alia,  a  series  of  beatings,  298. 

For  murder  by  striking  with  an  axe,  304. 

For  murder  by  throwing  stones,  304. 

For  murder  by  causing  premature  birth,  305. 

For  murder  by  throwing  upon  the  ground,  beating,  etc.,  307. 

For  murder  by  stabbing  with  a  knife,  309. 

For  murder  by  selliog  poisonous  berries  as  good  and  wholesome  food, 
310.  ^  • 

For  murder  by  stabbing  with  a  knife,  311. 

For  murder  by  inflicting  a  blow  on  the  head  with  a  hammer,  312. 

For  murder  by  striking,  kicking,  etc.,  313. 

For  murder  in  some  Avay  and  manner,  etc.,  unknown,  314. 

For  murder  by  shooting  with  a  pistol,  314. 

For  murder  by  cutting  the  throat,  315. 

For  murder  by  throwing  a  knife,  316. 

For  murder  by  casting  a  stone,  317. 

For  murder  by  striking  v.'ith  a  poker,  317. 

For  murder  by  beating  with  fists,  and  kicking  on  the  ground,  318. 

For  murder  by  choking  and  strangling,  319. 

For  murder  by  riding  over  a  person  with  a  horse,  320. 

For  murder  by  strangling  with  a  handkerchief,  320. 

For  the  murder  of  a  bastard  child  by  foiding  in  a  cloth,  321. 

For  murder  by  throwing  a  bastard  child  into  a.  privy,  322. 

For  the  murder  of  a  bastard  child  by  strangling,  323. 

For  the  murder  of  a  bastard  child  by  hiding  and  starving  it,  323. 

For  murder  by  drowning,  324. 

For  murder  by  poisoning,  325. 

For  murder  b}-  placing -poison  so  as  to  be  mistaken  for  medicine,  326. 

HOUSES  OF  ILL  FAME. 

For  keeping  a  house  of  ill  fame,  328. 

For  letting  a  house  to  a  woman  of  ill  fame,  at  common  law,  329. 

42* 


498  INDEX   TO   PRECEDENTS. 


IN^CEST. 

Indictment  for  Incest,  330. 


JURISDICTION. 
Plea  to,  475. 

Keplication,  475. 

L. 
LARCENY. 

For  simple  larceny  at  common  law,  341. 

For  larceny  by  the  cashier  of  a  bank,  341. 

For^lareaking  and  entering  a  railroad  depot  in  the  night  time,  "vritli  intent 
to  commit  larceny,  342. 

For  breaking  and  entering  a  stable  in  the  night  time,  and  committing 
larceny  therein,  342. 

For  breaking  and  entering  a  shop  in  the  niglit  time,  adjoining  to  a 
dwelling-houSe,  with  intent  to  commit  the  crime  of  larceny,  and  ac- 
tually stealing  therein,  343. 

For  breaking  and  entering  a  shop  in  the  night  time,  and  committing 
a  larceny  therein,  344. 

For  breaking  and  entering  a  vessel  in  the  night  time,  and  committing  a 
larceny  therein,  344. 

For  entering  a  dwelling-house  in  the  night  time,  without  breaking,  some 
persons  being  therein,  and  being  put  in  fear,  345. 

For  breaking  and  entering  a  dwelling-house  in  the  daytime,  the  owner 
being  therein,  and  being  put  in  fear,  345. 

Larceny  in  a  dwelling-house  in  the  night  time,  346. 

Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the  night  time, 
347. 

For  breaking  and  entering  a  meeting-house  in  the  night  time,  and  com- 
mitting a  larceny  therein,  348. 

For  stealing  in  a  building  that  is  on  lire,  348. 

For  stea!ing«}u-()perty  removed  in  consecjuencc  of  alarm  caused  by  lire, 
34U. 

For  a  larceny  fnjiu  tlie  person,  349. 

For  larceny  nl'  real  property,  349. 

Li;\vi)Xi;ss  .\\i>  lascivious  cohabitation. 

jMilictnient  at  connnon  law  i'or  exposing  the  person,  351. 

For  lewd  and  lascivious  cohabitaticni,  352. 

For  open  and  gross  lewdness  and  lascivious  behavior,  352. 


INDEX   TO   PRECEDENTS.  499 


LIBEL. 

Indictment  for  libel  and  plea  of  justification  under  Lord  Campbell's  act, 

356. 
Indictment  for  a  false  defamatory  libel,  3fi5. 
Indictment  for  a  libel  against  a  judge  and  jury  in  the  execution  of  their 

duties,  366. 
Indictment  for  slanderous  words  to  a  magistrate,  367. 
Indictment  for  a  libel  on  an  attorney,  368. 
Indictment  for  hanging  a  man  in  elFigy,  360. 

M. 

MAINTENANCE. 

Indictment  for  maintenance,  371. 

MALICIOUS  MISCHIEF  AND  WILFUL  TRESPASS. 
For  maiming  a  horse,  373. 
For  poisoning  a  horse,  374. 
For  beating  a  horse,  374. 
For  exposing  a  poisonous  substance  witli  intent  that  it  should  be  taken 

and  swallowed  by  a  horse,  375. 
For  injuring  a  horse  by  shooting  him,  375. 
For  breaking  down  a  dam,  376. 
For  destroying  the  machinery  of  a  water  mill,  376. 
For  drawing  off  the  water  contained  in  a  mill-pond,  376. 
For  cutting  down  an  ornamental  tree,  3  77. 
For  destroying  a  tree  growing  in  a  cemetery,  37  7. 
For  breaking  glass  in  a  building,  377. 
For  breaking  down  a  fence,  3  78. 
For  breaking  down  a  guide-board,  378. 
For  cutting  down  a  timber  tree,  379. 

For  destroying  plants,  etc.,  in  a  garden  on  the  Lord's  day,  379. 
For  malicious  injury  to  ice  taken  as  an  article  of  merchandise,  380. 
For  destroying,  by  explosion,  a  dwelling-house,  380. 
For  exploding  gunpowder  in  a  house  with  intent,  etc.,  381. 
For  defiicing  a  dweHIng-housc  by  throwing  filthy  substances  into  it,  381. 
For  attempting  to  obstruct  engines  and  carriages  passing  upon  a  rail- 
road, 381. 
For  obstructing  engines,  etc.,  382. 
For  throwing  a  stone  against  a  railroad  carriage  with  intent,  etc.,  383. 

MAYHEM. 

For  mayhem  by  slitting  the  nose. 


500  INDEX  TO   PRECEDENTS. 


N. 

NUISANCE. 

Nuisance  by  deleterious  smoke  and  vapors,  385. 

Nuisance  by  rendering  water  unfit  to  drink,  386. 

Nuisance  by  diverting  a  ■watercourse,  386. 

Against  a  parent  for  not  giving  his  deceased  child  a  Christian  burial, 

387. 
For  bringing  a  horse  infected  with  the  glanders  into  a  public  place,  390. 
Nuisance  for  carrying  on  a  trade  offensive  to  the  smell,  393. 
Against  a  town  for  not  repairing  a  highway,  393. 
For  keeping  a  disorderly  house,  395. 
For  carrying  on  an  offensive  trade,  396. 
For  keeping  a  bawdy-house,  397. 
For  keeping  a  common  gaming-house,  397. 

o. 

OFFENCES  AGAINST  THE  PUBLIC  HEALTH. 

For  selling  unwholesome  meat,  399. 

For  adulterating  bread  for  the  purpose  of  sale,  399. 

For  selling  adulterated  medicine,  400. 

For  selling  a  diseased  cow  in  a  public  market,  400. 

P. 

PERJURY. 

Indictment  for  perjury  committed  at  the  Central  Criminal  Court,  on  the 

trial  of  an  Indictment  for  wounding  with  intent  to  murder,  408. 
For  perjury  committed  before  a  grand-jury,  4n. 
For  peijury  committed  at  the  trial  of  an  indictment  at  the  Central 

Criminal  Court,  415. 
For  perjury  committed  in  an  examination  before  a  commissioner  of 

bankruptcy,  421. 
For  perjury  against  a  witness  who,  on  a  former  trial,  had  sworn  that  a 

note  was  given  to  the  plaintiff  for  the  purpose  of  being  discounted 

merely,  and  not  in  payment  of  a  debt,  430. 
For  perjury  before  a  grand-jury,  435. 

PLEA  ixm;au. 

Form  of,  4  79. 
Replication,  480. 
Similiter,  480. 
Rejoinder,  480. 


IXDEX   TO    PRECEDENTS.  501 


POLYGAMY. 

Indictment  for  poWgamy,  439. 

For  polygamy  by  continuing  to  cohabit  with  a  second  wife  in  this  State, 
440. 

K. 

EAPE. 

Indictment  for  rape,  443. 
For  rape,  443. 

For  carnally  knowing  and  abusing  a  woman  child  under  the  age  of  ten 
years,  444. 

EECEIVING  STOLEN  GOODS. 

Indictment  against  a  receiver  of  stolen  goods,  as  for  a  substantive  felony, 

448. 
Against  a  receiver  of  stolen  goods,  449. 
Against  a  receiver  of  embezzled  property,  450. 

• 

RESCUE. 

Indictment  for  the  rescue  of  a  felon  fi-om  a  constable,  452. 
Another  precedent  for  the  same,  454. 

RIOT. 

For  riot  and  assault,  45G. 
For  riot  and  tumult,  456. 
For  remaining  one  hour  after  proclamation  made,  457. 

ROBBERY. 

Indictment  for  robbery  at  common  law,  46 L 

For  robbery,  the  prisoner  being  armed  with  a  dangerous  weapon,  461. 

For  robbery,  the  prisoner  being  armed  with  a  dangerous  weapon,  and 

striking  and  wounding  the  person  robbed,  462. 
For  robbery,  not  being  armed,  462. 
For  attempting  to  extort  money  by  threatening  to  accuse  another  of  a 

crime,  463. 

S. 

SEPULCHRES  OF  THE  DEAD. 

For  digging  up  and  carrying  away  a  dead  body,  464. 

For  disinterring  and  removing  a  dead  body  without  permission,  464. 


502  INDEX  TO   PRECEDENTS. 


SLUNG  SHOT. 

For  being  armed  witli  slung  sliot  when  arrested  wblle  cotnmitting  a 

burglary,  i66. 
For  selling  slung  sliot,  467. 

SODOMY  AND  BESTIALITY. 

Indictment  for  sodomy,  468. 
Another  precedent  for  the  same,  468. 
Indictment  for  bestiality,  469. 


THREATENING  LETTER. 

Indictment  for  threatening  to  accuse  of  an  infamous  crime,  470. 
For  sending  a  letter  threatening  to  accuse  a  person  of  a  crime,  472. 
For  sending  a  letter  threatening  to  burn  a  dwelling-house,  473. 
For  sending  a  threatening  letter^  473. 


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